Hundreds of people who gave confidential testimony to the Commission of Investigation into Mother and Baby Homes will be able to get copies of that testimony, now that the recordings have been secured.
From Sunday, the records of the commission, established in 2015, will pass to the Department of Children, Equality, Disability, Integration and Youth once the commission dissolves.
Data-protection law means that each person who attended before the commission can access their own data from the department, including the recordings on the back-up tapes.
"The witnesses do have access rights to the back-ups," said data-protection law expert Fred Logue: "You very much do have a right of access to that, irrespective of whether it is the commission or the department that has the data.
“The fact that [my data] is confidential to other people doesn’t mean that it is confidential to me,” said Logue, the principal of FD Logue Solicitors, which specialises in information law.
Unlike, for instance, the testimony of a witness who appeared before a public tribunal of inquiry in Dublin Castle, the testimony of those who appeared before the committee is not privileged in terms of publication.
“There are still third-party rights, like defamation and copyright and so on. Access is just for you personally. What you do with it after that is your own look-out. It is up to you to make sure that you use it in a way that is lawful.”
Though the commission believed that it had deleted the tapes last July, as it had always intended to do, back-up tapes have been found and they are “accessible and audible”, according to an IT expert
The recordings were made by notetakers who heard witnesses who came before the confidential committee of the commission to tell their stories that were included in an anonymised report prepared for the commission.
Witnesses were told the recordings were an aide memoire for notetakers and would be destroyed, the commission insists. Some witnesses say they were not told this, and no written record exists to settle the dispute.
Normally, people are given a data-protection notice in advance by a body or organisation, explaining how their data is to be treated, says Logue. Doing so orally, as happened with the commission, “is not very satisfactory”.
Nearly 80 people are anxious that their names are never revealed and have sought that their interview with the confidential committee is redacted from the records passed over.
“The commission is now considering how this will be done and has reiterated its commitment to maintain the anonymity of these people,” the department said.
The commission insists it has taken steps to preserve the accounts of witnesses, but still believes “strongly that [the recordings] shouldn’t be retrieved, for legal and moral reasons”.
The commission was chaired by Judge Yvonne Murphy, who has also acted as chair of commissions of investigation into two Catholic archdioceses.
The other members are Dr William Duncan, international child-protection expert, and history professor Mary E Daly, a member of the Taoiseach's expert advisory group on commemorations.