Birth information bill for adopted people ‘at odds’ with EU law, committee hears

Lawyers tell TDs and Senators that Birth Information Bill ‘not legal’ under GDPR

A new law intended to legalise a person's right to access birth certificates and information is incompatible with EU privacy law, an Oireachtas committee has been told.

Solicitors Simon McGarr and Fred Logue told the committee on children that the proposed legislation, the Birth Information and Tracing Bill 2021, legislates for a legal right that is already in existence under EU law through the General Data Protection Regulation (GDPR).

Mr McGarr told TDs and senators that the legislation attempts to “legislate away” a person’s rights under GDPR and tries to set Irish national law above the EU rights of access.

He pointed to administrative risks and legal consequences that would flow from passing a a piece of national legislation that was “at odds” with EU law.

He raised an objection to the part of the proposed legislation where people seeking birth information from the Tusla child and family agency or the Adoption Authority would have to attend a mandatory information session where a parent has registered a "no contact" preference.

This was “simply not legal” under GDPR and would “inscribe into national law a restriction under a person’s right of access to personal data, without demonstrating in law any necessity or proportionality for that restriction”.

Mr McGarr said that it is not clear in the legislation what this restriction would be, as it is acknowledged that the record will be granted in all cases.

“It appears to be a conflating of the process of accessing personal data with the process of initiating contact,” he said.

Mr Logue told the committee that part of the legislation was “entirely misconceived” and would “almost certainly” lead to “arbitrary and unlawful outcomes.”

He said there was a risk that “incomplete legislation” will “make things worse” by creating a limited parallel access regime alongside GDPR, rather than complementing it.

Dale Sutherland, deputy commissioner at the Data Protection Commission (DPC), told the committee that the legislation was necessary in providing "further clarity and certainty" around access to personal data.

“That’s not to say that the DPC is saying that all the policy choices in the Bill are the right ones or the safeguards are the right ones,” Mr Sutherland said.

There were heated exchanges during the mostly virtual committee hearing when Mr Logue said that open access to records almost everywhere else in Europe had not led to adopted people "turning up and murdering their parents".

Fianna Fáil Senator Erin McGreehan described the comment as "really crass and really unfair" for failing to take into account a mother's fears.

Mr Logue withdrew the remark and apologised.