Frank, openly and transparently discusses the important issues of unsealed records for the Magdalene Women, Children and Families

Monday 19 October 2020

Dear Minister O’Gorman

Introduction:

As the surviving Grandson of a woman, who was incarcerated for 42 years before her death, along with my Father having suffered with the stigma of his birth, being fostered out and never knowing his real family, it falls to me to carry the torch on their behalf and seek the complete truth of what happened to them.

I am more fortunate than many affected by the Magdalene scandal, because through hard detective work, I have been able to establish the many facts of family and of what happened to them.

However, whilst my own journey nears a logical end, I am still waiting for the last pieces of the jigsaw puzzle from TUSLA & Religious sources; their records!

It is important for you to know, that many I have met on this journey, including those inspired by my own efforts, fervently believe that Justice and Process will help them achieve their goal. They simply want to find the truth of their families; they seek to establish or re-establish their own Irish Identity.

Your recent Twitter Comments:

Before I deal with the substance of the issues surrounding the ‘Commission of Investigation (Mother & Baby Homes and Certain related Matters) Records Bill 2020’, I think it is important to acknowledge your recent public comments and to provide my own observations.

On the 13 October, you made public comments through the Twitter Platform on this important matter. It is important to note that in those Public comments, you made heavy a reliance upon the ‘Commission of Investigation Act 2004. By relying so heavily upon the provisions of the Act, you therefore presumably support Section 3 of the Act which defines the whole raison d’être of any Commission, to investigate on behalf of ‘Public Concerns’? The Act does not define what ‘Public Concerns’ mean, but I think you would accept that such concerns are not just grounded in common sense, but within the suffering of the Magdalene Women, their children and their immediate and extended families. That ‘Public Concern’ is matched by the outrage and disgust of the Irish Public as we have seen in recent years.

You have asserted that within the premise of the Act, investigations have to be held in private. Whilst this is basically correct, Section 11 (1) (a) instructs on an alternative, making clear that investigations can be held in Public. However, you will be aware that there is considerable controversy concerning the lack of agreement given to victims of the Magdalene experience to be heard openly and in public through the Commission’s process.

Continuing with the theme of your Twitter comments, Section 11 (3) makes clear when such evidence can be made public. In particular, I have noted the provisions contained within Section 12 and of the right of access to information, along with the public interest provisions concerning the sources of information. These are very clear rights and obligations indeed.

A review of Section 43 makes clear that all documents should be transferred to the Minister upon conclusion and dissolution on the Commission of Investigation. You stated that the MBHC did not consider that there was any legal basis to transfer the database, thus contributing to the assertion that uncertainty exists. A review of Section 2, defines ‘document’ which: "includes any book, record or other written or printed material in any form, including any information stored, maintained or preserved by means of any mechanical or electronic device, whether or not stored, maintained or preserved in a legible form”. Therefore it must logically follow, that a database is included in the definition of ‘document’ and the MHBC should have no difficulty in transferring the entire ‘document’ to you.

The issue of the present Bill before both Houses of the Oireachtas, allowing for the transfer of the information to TUSLA is proving to be highly controversial, given their own methodology in dealing with the Magdalene survivors and extended families when they seek access to information. Again, it is not necessary to set out the detail of this controversy, as those comments are contained within the public sphere.

You suggested that with regards to “wider” records, you did not have access to them. If you are referring to the documentary outcome of the Commission’s investigation, then Section 43 (2) & (3) makes very clear the duty of handing over all records to you upon the dissolution of the Commission. If you are referring to documentation held elsewhere, then I would be grateful if you could advise me of those issues separately?

With regards to your claim that your department “does not have access to the records and [that] any disclosure is prohibited by law.”, I shall assume that you are referring to the provisions of Section 41 of the Act. However, I would refer you to the January 2020 decision of the Information Commissioner in Mrs P & The Department of the Taoiseach, which concerned the holding of Magdalene Archive records. Noting the important legal issues and government misunderstanding, raised by the Commissioner, they concluded that, “In the circumstances, I see no reason why the Department would not be entitled to access the information contained in the archive of records. In conclusion, I find that the Department is in lawful possession of the records at issue in connection with, or for the purpose of, its business or functions and that it is also entitled to access the information in those records. I find, therefore, that the records at issue are held by the Department for the purposes of the FOI Act”. This carefully argued decision provides additional clarity and indeed legal certainty against your comments.

You then referred to the legal requirement to seal the records for 30 years. I have noted the position declared within Section 41; is this belief designed to frustrate the findings contained within the Information Commissioner’s decision in the case of Mrs P and the clear obligations that exist? Given the ‘Public Concerns’ on this issue, no doubt determined through the Commission Investigation, would you not agree that this intention flies in the face of the clear Human Rights contained within the Irish Constitution and The European Convention on Human Rights? In my opinion, the Irish Government do not need to impose such a draconian measure to the detriment of so many victims, survivors and their families.

Your final comments within Twitter provide no relief for those who are seeking to claim their identity and extract information on what happened to them. I am not convinced, having seen the current draft of the new Bill, that it offers any comfort to the Magdalene women, children and their families. 

I do not doubt your commitment to addressing any imbalance, indeed you refer to “new architecture”, but with sincere respect, knowing how sensitive your proposals through this Bill would be, surely the time to introduce such ‘architecture’, is within the structure of this Bill, rather than as you suggest, that these proposals “will be advanced soon”? This does not build confidence nor respect. 

I have noted your willingness to engage, but again, this should have been achieved before the publication and fast-tracking of this Bill. I also regret to say, offering comment that people may recognise their own words will provide little comfort.

In conclusion, your public Twitter comments tend to suggest that perhaps all of this is being rushed, or is it the case that you have in mind some of the issues or concerns contained within Section 38 of the Act? 

Clarity on this latter point and reflection on repeating the mistakes of the past would greatly assist in taking the heat out of this issue. 

Based on these comments, I would urge you to apply a legislative break on the progress of this Bill.

General Commentary on the proposed Bill:

As I continue with my search for the truth, I have noted that the Commission of Investigation (Mother and Baby Homes and Certain related Matters) Records Bill 2020 is scheduled for fast track Oireachtas approval this week.

There has been no consultation on the Bill. 

Generally, you claim that this legislation is necessary to ‘safeguard’ the records gathered and created by the Mother and Baby Homes Commission of Investigation.

However, I note that you are giving away part of the Commission of Investigation’s archive to TUSLA, without keeping a copy. On the issue of sealing the remaining records for 30 years, I have offered commentary above.

I will observe however that invoking this 30 year rule will mean that no-one will be able to access their personal records from your archive, or information in the archive about their disappeared relatives or indeed the hundred’s of babies who were buried in unmarked graves.

Under the Bill, some of the records gathered by the Commission (a ‘database and related records’ of women and children detained in 11 Mother and Baby Homes) will be given to TUSLA. The rest of the archive will go to the Minister for ‘sealing’. How is it acceptable to release some but not all of the records?

TUSLA is not the appropriate recipient for any part of the Commission’s archive. It operates legally troubling and discriminatory practices, including defining adopted people’s birth name as ‘third party data’ and undertaking ‘risk assessments’ of all adopted people who request their records.

All of the administrative files, which show how the abusive system of forced family separation was run, will also be withheld.

It will not be possible to question the conclusions of the Commission of Investigation, to do further research, or to hold wrongdoers to account.

We should absolutely prevent this further human rights abuse. The secrecy has to end.

The Bill itself demonstrates that it is possible for the Oireachtas to ‘un-seal’ the Commission’s archive if it wants to.

The Bill also ignores the views of the Collaborative Forum of Former Residents of Mother and Baby Homes, which was established to advise the Government and repeatedly stated that TUSLA should have no further role in adoption information and tracing.

I understand that Members of the Adoption Rights Alliance online peer support group (with 2,162 members), complain almost on a daily basis about their experiences when they request their personal data from TUSLA.

Just two weeks ago, you apparently promised that you would receive a copy of all records gathered by the Commission of Investigation. This Bill breaks that promise: it states that the ‘database and related records’ transferred to TUSLA will not form part of the Minister’s archive.

When the Minister emailed stakeholders including survivors, adopted people, natural mothers and relatives with a copy of the published Bill he failed to inform them of this fundamental change.

Concluding Comments:

For the sake of all the Magdalene Women, Children and their families, I call on you to ensure that:

1. The Bill is amended so that the Minister takes custody of the whole archive and provides immediate access for affected individuals and families to all records concerning them or their disappeared relatives once he receives the records. In fact, this is currently required by Section 43 of the Commissions of Investigation Act 2004 and Section 198 of the Data Protection Act 2018, and

2. The Government commits to establishing a dedicated archive at Sean McDermott Street to provide national education and truth-telling regarding all connected forms of ‘historical’ institutional and adoption-based abuses. Administrative records can be anonymised as necessary to protect survivors, adopted people, natural mothers and relatives. Individuals should be entitled to voluntarily deposit their testimony, and

3. I would also call on the Irish Government to recognise that the time has come to establish a publicly open and transparent a Truth & Reconciliation Commission; I have called for this important action since 2013 through the Taoiseach’s Office and the Minister of Justice.

You must accept that the Government is progressing this Bill at lightning speed. It can act swiftly when it chooses to do so; it can set the terms of what should happen to these important records and how they will be managed in the future. Placing a blanket ban on the records, or offering a frustration of process through TUSLA, leads me to the conclusion that the Government is abdicating its primary responsibilities to the Magdalene Women, Children and their families.

The relatives of disappeared women and children throughout the country, and living survivors and adopted people, have been denied any access to the Commission of Investigation’s archive.

Witnesses have even been denied a transcript of the evidence that they gave to the Commission of Investigation.

The ‘sealing’ of abuse records has to end.

I note that in 2019, politicians rightly recognised that the Retention of Records Bill, which proposed sealing all records in the Ryan Commission’s archive for at least 75 years (even from survivors themselves) was unacceptable.

Again I refer you to the January 2020 decision of the Information Commissioner, who found that the Department of the Taoiseach was acting unlawfully by claiming that it is holding the McAleese archive of state records on the Magdalene Laundries ‘for safe keeping’, rather than allowing access to the records under Freedom of Information.

As an Irish Citizen, I believe that Ireland is better than these intended actions. I call upon you and all members of the Oireachtas to think again; now is your chance to do the right thing. Transparency & Truth is the only way forward.

It is time to now end the Magdalene Scaradh of generations!

I look forward to hearing from you.

Yours sincerely, 

Frank Brehany

www.frankbrehany.com

19 October 2020