It will not be possible to salvage recordings of survivors of mother and baby homes made, but then deleted, by the commission of investigation into the institutions, an Oireachtas committee has been told.
The deletion of the tapes has caused controversy, with survivors and campaigners claiming it may be a breach of data protection laws, and some victims saying they were not told the recordings would be deleted.
Minister for Children Roderic O’Gorman told the Oireachtas Committee on Children on Tuesday that he had written to the commission to ascertain if the tapes of almost 550 witness statements to its confidential committee could be recovered, perhaps from back-up copies, but that it had responded to say that its view is “those tapes are not retrievable”.
The commission has said it told witnesses the records would not be stored to protect their confidentiality. The tapes and notes relate to a specific arm of the commision set up to allow victims and survivors to share their experiences in a non-legal setting.
“Witnesses were asked for permission to record their evidence on the clear understanding that the recordings would be used only as an aide memoire for the researcher when compiling the report and would then be destroyed,” the commission said in its report.
The commission said on the application form to appear before the confidential committee it was made clear that all such information would be dealt with on a strictly confidential basis.
It is understood that the commission told Mr O’Gorman in a letter on Tuesday that it had engaged with its IT experts to see if retrieval was possible, but had been told that it is not possible to retrieve the recordings at this stage.
Asked by Social Democrats TD Jennifer Whitmore if the commission had acted within its remit by destroying the tapes, he said it was "difficult in the context of an independent commission for me to create a judgement".
“In all their communications with me, the commission has outlined what they believe their rights and responsibilities in the context of the GDPR and the context of data protection are. They’ve said they have acted in good faith in terms of what they did,” he said.
Giving evidence to the committee, Mr O’Gorman also said that he had written to the Attorney General in recent weeks over the deletion of the tapes, which were garnered by the confidential committee, a specific arm of the committee set up to allow victims and survivors to share their experiences.
“I engaged with the Attorney General (AG) on the issues of what the commission did in terms of the tapes. We are still going back and forth on that particular issue, and we will continue to engage on that topic,” he said, adding that he hoped to hear from the AG “in the near future”.
Mr O'Gorman was non-committal on the prospect of extending the lifespan of the commission, which members of the Oireachtas committee argued would allow it to address issues raised by survivors, including the deletion of records, and to continue its engagement with the Data Protection Commission (DPC).
However, the Minister said were the commission's timeframe to be extended beyond the end of this month, this could delay the transfer of its extensive archive to his department. He said that the transfer of this information is a key step in enabling survivors to access their records, as his department has been preparing a new information management unit in order to receive what are known as "subject access requests". This is a powerful tool which allows an individual request data relating to them under far reaching European access laws called the General Data Protection Regulation (GDPR).
The Commission has not been facilitating the requests, but Mr O'Gorman has said his Department will do so. He told Independent Senator Alice Mary Higgins that the full repository of information retained on a computer server by the Commission is being transferred to his Department, and would be available for future use if there were more inquiries or tribunals focusing on aspects of the mother and baby homes.
While Mr O’Gorman acknowledged that the language and the approach taken in the executive summary of the report had been upsetting and damaging to some survivors, he said that its work had also allowed him to make progress, armed with its conclusions, on several aspects of the sprawling mother and baby homes controversy. These included the role of GlaxoSmithKline, the British drug maker, in vaccine trials undertaken on children in the homes.
He said there was now clear evidence of breaches of regulatory and ethical standards in the course of these trials. "I will be writing to GlaxoSmithKline, asking them to reflect on what the chapter on vaccinations said about the lack of an ethical framework in terms of how vaccination trials took place, and asking for them to respond," he told Fine Gael Senator Mary Seery Kearney.
He said there would be heads of bill produced for information and tracing legislation by “late March or early April”.