Considering blowing this up and building an entire Barnum-style Museum of Legal Madness around it.

You can only have your data if you prove what people in future hypothetical Commissions will do if they know you got it.

The Dept of Pre-Crime, but for the GDPR.

Or the operation of the current Commission which *has only handed over the data to the Minister after it has been dissolved*

- —Interlude.—-

Let’s start off with the main point, expressed clearly-

This is an unlawful restriction on data subjects’ Art 15 GDPR rights of access data relating to them.

It has happened because the Irish state still- still- doesn’t want to accept EU law as superior to its national law.

As a result it is attempting to assert that the right of access is subject to both the EU law balancing procedure (correct, but as yet never correctly applied by the state to adoptees records) and the National law procedure the Minister told us last week “prohibits” the GDPR.

It is applying this section, Section 39 of the 2004 Act, to the records but also attempting to apply Article 15 of the GDPR which is both in conflict with the Irish law, and superior to it.

The S39 restriction was then amended by section 198 of the Data Protection Act 2018 in an effort to maintain its restrictions even under the GDPR.

The problem for these national law restrictions is that the restriction they’re trying to impose has no basis in the GDPR as a legitimate restriction.

There are a set of things you are allowed to pass restrictions about.

You’ll find them in Article 23.

As an aside, the Minister appears to have an inkling his RTÉ statement has gone awry.

Whether that means the earlier statement saying there will be two tests applied before personal data is released is unclear, thereby failing one of the core aims of a clarification.

Let’s continue as we were in the meantime.

We were going to take a gander at Article 23 of the GDPR.

Now Art 23 is a list of limited purposes which allow for restrictions of GDPR rights.

BUT, and this seems to escape the state, it has two halves.

It also has a list of things that a restriction must include to be legit.

You can go and read the whole thing here.

https://www.privacy-regulation.eu/en/article-23-restrictions-GDPR.htm

Let’s start off with the general proviso at the top of Art 23.1.

No legal restriction which isn’t necessary and proportionate is valid.

Also no provision which strikes at the essence of the right of access can be lawful, even before necessity is considered.

Any reading of Section 39 of the Commissions of Inquiry act above will see it sets out to restrict the essence of the right.

But let’s imagine it didn’t.

Remember, the supremacy of EU law means the state can pass inoperative laws, where they clash with EU law.

And the state, strangely, is unwilling to accept this as the consequence of being an EU member state.

So now let’s take a look at the stated purpose of the restriction: “to safeguard the effective operations of Commissions and the future cooperation of witnesses”

And take a look at the listed Art 23 acceptable purposes for which a right can be restricted.

You will not see it.

*But* let’s explore the further reaches of the Ministerial Land oF Fiction and say that the S198 DPA 2018 amendment to the old 2004 Commissions Act was not restricting the essence of a right *and* had a purpose which was allowed for under Art 23.1

It still wouldn’t be valid.

That’s because Article 23 has a Clause 2.

That’s the list of things which have to be in any law which meets one of the requirements in clause 1.

If they’re not there, the law would be invalid, even if it met the Art 23.1 requirements.

Guess what’s not in the Irish laws...?

To recap: the Minister said he will apply two tests to every GDPR request for W data from the Mother and Baby Home archive and one of the tests is illegal.

Why?
1) Because it restricts the essence of the Right of Access
2)Because it relies on a non-operative basis for that restriction under Art 23.1
and
3) Even if both points 1 and 2 were not the case, it doesn’t contain the minimum safeguards per Art 23.2 for a restriction.

Now, that’s a whole bunch of words there, and it’s important people get a chance to absorb it.

So here’s what I propose to do to help legislators work through this - both Govt and opposition and Independents.

I’m going to *talk with them*

Non-Shadowy figure @WhitmoreJen has offered to send an invite to legislators to a zoom briefing by @maeveorourke and myself at Noon.

We’ll go through the above analysis and then deal with any questions on the state of the Govt’s position since last night’s announcements.