Law on institutional survivors' records crucial for many

While much of the political focus this week centred on the travails of Sinn Féin, a significant announcement affecting thousands who spent time in institutions went under the radar.

On Tuesday, Minister for Children Roderic O'Gorman announced that statutory obligations would be placed on the private holders of records concerning Ireland's 20th-century institutional and family separation system.

The records relate to the personal information of those affected by Magdalene laundries, Mother-and-Baby and County Home institutions, children’s residential institutions, adoption, boarding out, orphanages and related institutions.

Legislation will be introduced in the Oireachtas next week to protect the personal information of many people around the country.

To get it over the line prior to the general election, amendments will be brought to the Maternity Protection Bill, which is currently at the second stage in the Dáil, having passed through the Seanad.

Setting aside the question as to why the legislation is being introduced at such a late stage in the current Government’s term, protecting documents relating to so many people around the country is important.

Put simply, it is about preserving records that contain the personal information of those who were incarcerated in institutions and about how those institutions were run.

If the legislation is enacted, it will be a criminal offence to destroy such documents or remove them from the jurisdiction.

Minister O’Gorman told journalists that the introduction of a criminal sanction for the destruction of records recognised the seriousness with which the Government is taking this issue.

Asked if the destruction of records prior to the enactment of the proposed legislation could be dealt with retrospectively, he pointed out that there are constitutional prohibitions to "retrospective criminality" and that "the prohibition here is forward looking".

As someone who found significant financial records relating to the Donnybrook Magdalene laundry on the abandoned Donnybrook site in 2018, Dr Mark Coen of UCD’s Law Department described it as "a significant legal development".

"The experience of finding financial records in an abandoned building that was prone to vandalism and full of pigeons, brought home the precarious circumstances in which some of these really important records can be found," he said.

Aside from the extensive records held by religious congregations, it is believed that attics, solicitors' offices and GP surgeries nationwide could contain key information.

Recently, records of children who were in institutional care at the Magdalene site in Donnybrook, were found at a newly purchased property in the village, which was also owned by the institution.

While the full extent of documentation languishing in disused properties, sheds or outhouses is not known, there was a network of over 180 institutions, which means it could be vast.

Part of the proposed preservation of records legislation permits the director of the National Archives to engage with potential private holders to request a statement regarding any relevant records that they hold.

The aim is to support the director and the State more broadly in understanding the scope of records currently held in private hands according to a Senior Department Official.

If there is a failure to cooperate with the director, a failure to preserve records or if records are destroyed, it will be an offence under the legislation.

While some may view institutional records as historic curiosities - financial ledgers from the 1950s were, for example, exhibited in a pub - for those affected and their extended families, they require respect.

Family members want fuller picture of parents lives

Survivors and family members want the records removed from the institutions, congregations and individual organisations where they were institutionalised.

Queries relating to records are "the second biggest item" that the Special Advocate for Survivors Patricia Carey has dealt with since taking up the role six months ago.

She said many are unhappy that religious congregations still hold records that they do not have access to.

"I spoke to a lot of sons and daughters of people who are now deceased who want to have a fuller picture of their parents' early life, education, medical background.

"It's not good enough to have someone to go to five different places to access records about their life," she said.

While preservation is the first step, the broader context relates to the National Centre for Research and Remembrance at Seán McDermott Street.

It will contain a central repository of records managed by the National Archives of Ireland relating to institutional abuse and trauma in 20th Century Ireland.

The proposed legislation enables the director of the National Archives to request and receive an inventory, meaning survivors and affected people will know records relating to them are in one place.

The proposed legislation would mirror comparable legislation passed in Northern Ireland in 2022.

'Never too late to do the right thing' - UCD law professor

The Preservation of Documents (Historical Institutions) Act (Northern Ireland) 2022, focused on preserving records relating to Northern Ireland's institutional past.

If the proposed legislation passes in the Oireachtas, it means there will be consistency north and south of the border in terms of the mandatory obligation around preservation.

There were cross border practices relating to mother and baby institutions, Magdalene laundries and workhouse institutions.

Dr Maeve O’Rourke of the Human Rights Research Centre at Galway University who worked with affected people in Northern Ireland said there was an overwhelming demand for access to records.

Reasons given for records being unavailable included fires and floods.

However, since the introduction of the legislation two years ago, archivists of the public records office in Northern Ireland have reported a lot of cooperation from the private holders.

It is estimated that the legislation proposed by the Irish Government will affect a quarter of a million people (230,000 people who were in various institutions and their families).

Dr O’Rourke pointed out that its introduction is crucial to the immediate functioning of GDPR law, so that records are preserved for people who wish to make a subject access request and there is clarity regarding the requirement for them to be preserved.

The time frame between the introduction of the amendments next week and the Minister's aim of seeing the legislation through the Oireachtas by the end of the month is tight.

However, Justice for Magdalene's Research, Adoption Rights Alliance and the Clann Project have encouraged all politicians to support it.

Asked whether bringing amendments forward at such a late stage could be perceived as a cynical move by the Government on the cusp of an election, Dr Mark Coen said, "it’s never too late to do the right thing".