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The Data Protection Commission (DPC) wrote repeatedly to the Commission of Investigation into Mother and Baby Homes raising concerns about the handling of sensitive survivor testimony and delays in responding to queries.
The DPC also said it was “disappointed” that the commission had not quickly responded to one of its letters and warned that failure to respond to its concerns could be a breach of the commission’s duty of co-operation under data regulations.
In response, the commission said it had been given insufficient time to deal with the queries and said issues were being “conflated” in the letters.
The DPC said answers to its concerns should have been “immediately to hand” and that the tight deadlines were necessary given the commission was going to be wound down at the end of February.
A letter said: “This of itself unfortunately raises issues about the commission’s compliance with its GDPR obligations.”
The DPC also said it was noted that “a number of queries have regrettably not been responded to” and said lack of clarity on managing witness evidence was “due to a lack of information from the commission”.
In the correspondence – which was released under the Freedom of Information Act – the DPC raised a series of concerns over how redaction of records was being undertaken. It also asked the commission why it had not temporarily paused redaction of records as had been requested by the DPC.
‘Personal dictaphone’
In one letter, the DPC raised queries over what the commission had described as “personal dictaphone recordings”.
“Do you mean that the notetaker had their own dictaphone (or similar recording device) provided to them by the commission, or that they recorded witness testimony using their personal mobile phone or other personal device that was not in the control of the commission?” the DPC asked.
Among other concerns raised were a standardised letter to witnesses who had requested redactions to the evidence they had given.
The DPC wrote: “That letter does not provide the witness with any details of the records which are within the scope of a redaction request and does not provide them with access to those records.”
The DPC said it was their understanding that some witnesses would need to see the records to understand what had been written down in evidence.
It also said, while legislation covering the commission “purports” to restrict people’s rights under the GDPR personal data regulations, this could not be done in a “blanket fashion”.
Archive transfer
The DPC said: “It is also important to note that redaction and/or erasure of personal data is an act of processing that is regulated by the GDPR, and which therefore must be carried out in compliance with the GDPR.”
The DPC also sought clarity on how witness testimonies were recorded and where they were stored, in the correspondence from January.
The DPC also raised concerns about transferring the archive to Minister for Children Roderic O’Gorman and how that was being managed.
In another letter to the Minister, Data Protection Commissioner Helen Dixon reiterated those concerns, saying: “I should also note that my office has started to receive complaints from data subjects relating to the commission’s data processing and its approach to data subjects’ rights.”
In a statement, the Department of Children said at the time of the correspondence the mother and baby homes commission was the data controller for the records.
However, the department now fulfilled that role. “[Our] officials have engaged regularly in recent months with the Office of the Data Protection Commissioner to continue to share updates on progress being made by the department and to discuss some of the more complex matters concerning the archive.”