Dáil Éireann díospóireacht -
Wednesday, 19 Feb 2003

Vol. 561 No. 5

Transfer of Personal Records.

Ms Burton

I want the Minister for Education and Science to explain to this House on what legal basis and when, how and why he decided to hand computer copies of 41,000 files of former residents of residential institutions, such as industrial schools, to a non-governmental organisation, the Barnardo's charity. These are highly sensitive, personal files of residents of residential institutions run by religious orders. Many such residents were treated in an appalling way during their stay in these institutions – beaten, starved and deprived of family life, and a horrific number were subject to depraved sexual abuse. In light of what we know now, how could the Minister and the Department of Education and Science decide to hand over copies of these files to an NGO without public debate or discussion on the pros and cons of such an arrangement? Not only was there no debate in the Dáil, but former residents and organisations representing them seem to have been told little or nothing of this scheme.

The current arrangement is that former residents or their legal representatives can access their records directly from the Department of Education and Science. The Department of Education and Science is properly subject to the Data Protection Act, the Freedom of Information Act, the Ombudsman Act, and the Official Secrets Act. Will the NGO that received these records be subject to these laws, both to protect the confidentiality of these records and to guarantee all former residents of these institutions access to all their personal records?

What of former residents who do not wish for their own personal reasons to use the services of the NGO? Have they recourse to the Department? Has a legal arrangement been put in place with Barnardo's? Were the financial arrangements and the moneys paid and those to be paid to the NGO subject to a tender or contract process?

Barnardo's is a highly reputable NGO and my concern is not with it but with this extraordinary decision of the Minister. The Minister and the Taoiseach have made much of the State's apology to former residents and their concern to promote redress, healing and closure for former residents. In reality the Government has been more concerned with protecting the concerns of the religious orders that ran and controlled these institutions.

Much of the abuse that occurred happened because of the powerlessness and poverty of the residents compared with the magisterial authority and power of the Catholic Church in the first 50 years of the State. Belatedly, the State has acknowledged its share of the responsibility for these abuses but now it proposes to again treat former residents as objects without power, where decisions on their personal records can be made by the Department of Education and Science in secret without reference to them, the Dáil or the wider public.

I am informed that the Minister for Health and Children may be exploring similar proposals to give the adoption records of 40,000 people to Barnardo's without reference to organisations representing people who have been adopted, such as the Adopted People's Association, APA. For the State to take unilateral decisions on such sensitive personal information is a scandal.

A further issue which needs to be clarified is the Minister's transfer of computer copies of the records to the Laffoy Commission and possibly the Residential Institutions Redress Board. I ask the Minister if these include records of convictions in respect of former residents of institutions. In some cases, former residents of institutions were committed to these institutions on foot of having been found guilty as children of a range of often minor offences by District Courts. What are the implications of this for the commission and the redress board in terms of decisions they may reach on the treatment of former residents? Many of those who were convicted of offences as children would seriously question that they were guilty of anything other than poverty and powerlessness. The Government should initiate a full and open debate and dialogue on these arrangements. Outsourcing those records is not acceptable without full consultation and debate with those affected. Can the Minister of State explain why a full State records service is not the most appropriate way of addressing these very sensitive and important issues for the individuals concerned?

Mr. B. Lenihan

The Deputy has canvassed a wide range of issues in this very sensitive area. The Department of Education and Science maintains archival records in relation to approximately 43,000 former residents of the old industrial and reformatory schools system. These former pupils were placed in the schools by way of court orders. The records are maintained in the Department's offices in Athlone and are in paper form with copies in electronic format.

The Department currently processes requests under the Freedom of Information Act 1997 for access to records by former residents of the old industrial and reformatory schools. However, the FOI Act does not provide a mechanism for ensuring that the often sensitive issues arising in these records or matters such as tracing of lost family members are addressed. With this in mind and in order to ensure that a more comprehensive, compassionate and supportive service could be provided to former residents than is currently available from the Department under the Freedom of Information Act, the Department of Education and Science agreed to support the provision of an information and mediation service by Barnardos for former residents who wish to access their records.

The Department did not consider a public tendering process appropriate for such a sensitive service and routed it through Barnardos, which had considerable expertise and experience in this area. While Barnardos provides a service in relation to tracing and reunion for adopted persons, there are no current plans in the Department of Health and Children to give them original records which are in the possession of the Department in this regard. A copy of all relevant records held by the Department has been given to Barnardos in electronic format to facilitate the operation of the new service and the training of their staff.

Access to the records is strictly controlled and Barnardos have given a guarantee that only the records of those who have asked Barnardos to act on their behalf will be accessed. Barnardos will act as agents of the Department and the operation of the service will be governed by a legally binding service agreement, which is currently being finalised. Prior to the transfer of the records to Barnardos, the Department consulted with the Office of the Data Protection Commissioner and took data protection requirements into account in framing proposals for the new service.

The Department consulted widely with many of the groups representing former residents of the old industrial and reformatory schools when planning the new service, which is known as "Origins." The response from the groups was generally positive. In addition, the head of the Origins service met informally with the heads of the four main survivor groups who supported the introduction of the service.

All former residents retain an absolute right to access their records from the Department under the provisions of the Freedom of Information Act. In any dealings such residents have with the Department, they also retain the right of recourse to the Ombudsman's Office. It will be a matter for each individual to decide whether to access their records through the Department under the freedom of information legislation or through the service now being offered by Barnardos. There is no question of any former resident being denied his or her legal or statutory rights. The service being offered by Barnardos is designed specifically with the best interests of the former residents in mind.

The Department views the service being offered by Barnardos as a valuable alternative method of accessing personal records. It is not intended in any way as a replacement for the legal route under the Freedom of Information Act but as a more focused and compassionate alternative. It takes account of the issues affecting people who receive records of their period of residency in an industrial or reformatory school. Similarly, it assists those who have been unable to trace any records – which often proves more upsetting for the former resident – and offers a back-up support in the form of counselling, tracing and mediation which the Department is not in a position to offer.

The Deputy raised the question of a statutory provision for records in this area. The Department of Health and Children is, of course, a creature of statute and is subject to the statutes I have outlined. The establishment of a separate statutory agency would delay the assistance which the individuals concerned require. It would require legislation to be brought before the House and would, in all probability, involve incurring additional expenditure in the establishment of the relevant statutory body.