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So, where are we after #UnsealTheArchive?
1) There has been no real legislative improvement of the restrictive process by which people affected by adoption 1922-1998 access their records from Tusla. However, Tusla has been gifted a new limited finding aid, produced by the MBHC.
2) There has been no real legislative progress on securing witness access to the personal data produced by & with the Commn. They will be offered an opportunity to redact their data from a future access regime, but may not receive their own transcripts by default.
3) There has been no real legislative progress in improving survivor/public access to the historical record of the operation of the MBHC system (ie Commn evidence). The original records are in existence, but they are not being made accessible.
But...there has been a tremendous shift in public and political understanding of what the existing law requires in this area. A huge challenge to the assumption that, under Irish law, individual privacy is the same thing as institutional secrecy.
And, for once, the mainstream technical legal interpretation wasn't even controversial. Imagine finding any legal issue on which lawyers as diverse as Michael McDowell, Jim O'Callaghan, Catherine Connolly, Simon McGarr, Maeve O'Rourke and the DPC etc etc broadly agree?
It is clear now that, legally, there can be no justification for 'sealing' of the kind the Minister was talking about a week ago - an archive entirely black-boxed, held only for 'safekeeping', its contents unknown to any state official.
Radical domestic law reform in this area would be wonderful and welcome. But recent debates have shown that, actually, in this area at least, the existing law was enough, if it were only implemented in its proper spirit. There is no reason in law to treat survivors like this.
The govt loyalists were right on one thing - this debate wasn't really about the new Act. It was about the assumptions that made the Act appear necessary - assumptions notionally about s.39 of the 2004 Act and its relationship to GDPR but, in practice, assumptions about secrecy.
Habits of institutional secrecy have been exposed for what they are - an established (and increasingly a minority) political preference. The violence of habitual redaction of files, and blanket bans on access are crystal clear. Secrecy is no longer comfortable.
This is an important precursor to the MBHC report. The public have been made aware of the omissions, concealments and dodges that are necessary to the production of official history. They are unlikely to accept it as definitive or providing 'closure'.
And thanks to @Tupp_Ed for pointing out the eleventy ways in which the govt's interpretation of s.39 of the Commissions of Investigation Act 2004 was wrong. I enjoyed that a lot.
Anyway, mark my words - the very politicians who were yelling about "misinformation" this week will be polishing their best metaphors for the Great Cleansing Reform that is coming our way. Make sure they work for the honour.
Finally info is coming on how to access institutional data of relevance to you/your family - the whole thread here is useful. https://twitter.com/cmcgettrick/status/1320736290636181505
