WHEN IRELAND’S FIRST statutory adoption information and tracing services opened on 3 October, affected people applied in their thousands to Tusla and the Adoption Authority of Ireland (AAI) for their records.
The Birth (Information and Tracing) Act stipulates that State agencies must provide applicants with their records within one month or within a total of three months if a person’s case is deemed to be ‘complex’.
However, as the statutory deadline approached, it became increasingly clear to us from discussion threads on the Adoption Rights Alliance peer support group that most of the 2,800 members had yet to receive their records.
Our concerns were validated when, on 28 October, Tusla and AAI began emailing (many but not all) applicants to inform them that they will not receive their records within the statutory 30 days.
Those who applied to the AAI were told they would receive their records within 90 days, while Tusla told some applicants that would receive their records on or before 21 December, and others that they may not receive a response until the end of January.
In a statement, Tusla and the AAI announced that of the 4,632 people who applied to the two agencies for information, just 65 requests for information had been processed. In other words, just 1.4% of applicants received their information during the first three weeks of the system’s operation.
Given that over 4,500 people are still waiting in the queue, it is difficult to believe that the State agencies will be able to respond to everyone before the three-month deadline is up.
It is important to understand that the main issue for affected people is not that they may be waiting 90 days instead of 30 days for their records. After all, many have been waiting years.
The problem is that they were told that (unless their case is complex) they would receive the records within a month, but this promise was broken at the first hurdle.
As one member of our peer support group put it:
Trust levels were already low, but we are now in unprecedented territory. It is no secret that I have been highly critical of Tusla and AAI’s policies in relation to the release of records to affected people.
However, I believe that most of the blame lies squarely on the shoulders of Children’s Minister Roderic O’Gorman. This is for two main reasons.
Firstly, the process for releasing records is unnecessarily complicated because of how the legislation defines information into several subcategories.
Therefore, information officers must examine the files (often containing illegible handwriting) in search of information that is in line with numerous restrictive definitions before determining what can be released to the applicant.
It is hardly any surprise that there are delays. We began raising concerns as far back as June 2021, but our submissions all fell on deaf ears.
Adoption files belong to adopted people — simply put, they would not exist without us.
The job of an information officer should be to simply determine what records or information should legitimately be eliminated (for example mothers’ own medical records) before releasing most of the file to the affected person.
A second factor is that the Minister and his Department have designed the system without the appropriate input from affected people.
In June 2021 (just as we began raising the alarm), the Minister established the Birth Information and Tracing Implementation Group, which is comprised of representatives from the Department, Tusla and the Adoption Authority.
The group was set up with the specific purpose of ensuring the ‘successful implementation of the legislation in the interests of all those with questions on their origins’.
Inexplicably however, the Minister did not see fit to appoint a single affected person to that group.
Because the Minister has failed to consult with affected people in a meaningful way, I do not believe he understands just how low trust levels are.
A system that has not been informed by the expertise of those most affected is destined to be flawed. It is clear to us that the State does not truly value the knowledge and expertise of people with lived experience. On the contrary, it seems that the more empowered we become, the more State is determined to ignore us and thwart our efforts.
As I have said, the Minister ignored our concerns about how information is defined in the legislation.
In defence of his position, he repeatedly claimed that ‘the full and complete set of records will be given to the adopted person in each and every case’.
Over and over, he emphasised: “Nothing will be redacted. Nothing will be held back.”
Unfortunately, I can confirm that there are redactions and records have been held back.
On Tuesday of this week, I received (some of) my records from Tusla in response to my application under the new system.
When I downloaded the PDF of records and saw that it only contained 40 pages, my heart sank as I knew that our worst fears had come to pass.
The PDF of records I received via a subject access request under the General Data Protection Regulation (GDPR) contains 100 pages.
Therefore, although I have not yet had an opportunity to conduct a detailed analysis, on the face of it, it seems that under the new system, at least 60% of my file has been withheld from me.
I do have some of these records through GDPR and, thankfully, the number of redactions is small (and all three relate to information I already have), but this is hardly the point.
While I was extremely glad to receive some records that were previously withheld from me, none of what has been released to me tells the story of how I came to inhabit my current identity.
To put it simply, I still don’t know why my name is Claire McGettrick and not Caitríona Palmer.
Decisions made by social workers and adoption agency employees altered the life trajectory of every adopted person, and we have a right to see the records associated with those decisions.
At the flick of a pen, our whole identities were changed, and this impacted everything: our names, who our adoptive family members would be, where we would grow up, what schools we would go to, even our accents. The list is endless.
I do not wish to worry affected people who are awaiting their responses. Please rest assured that you will be given your birth certificates, you will find out your mother’s name, and your father’s if it is on the file. And you will receive quite a number of other records. But, as things currently stand when you apply to Tusla, you will not get your whole file and this is what you deserve.
This is not what ‘landmark legislation’ is supposed to look like. Instead, the Minister has created a chaotic, multi-layered system and the number of broken promises is steadily increasing.
For most people, this is the only ‘redress’ they will receive.
Because of how the legislation defines information, in order to get the bare minimum of what they are entitled to (but by no means everything), affected people will have no choice but to submit a GDPR subject access request alongside their application under the new system.
This is because some records will be released under the GDPR but not the new system, and some records will be released under the new system but not GDPR.
There are some records that will be released under both the GDPR and the new system, however, crucially, other records will not be released at all under either system.
Critically, when data subjects make requests for their personal data under the GDPR, they receive a schedule of what is on the file, whereas under the new system, State agencies do not have to tell affected people what they are withholding.
Yesterday, just as I had submitted what I thought was the final version of this piece, I
unexpectedly received my records from the AAI. I have not had an opportunity to
check in detail yet but from what I can tell, no records have been withheld from me.
Therefore, the GDPR schedule is an important tool to help affected people ascertain whether records have been withheld from them in their applications under the new system.
I am the first to criticise State agencies when they get things wrong, but in this
instance, I must give credit where it is due. The Authority has clearly taken a human
rights and affected-person centred approach to its interpretation of this flawed
legislation, and I hope that Tusla will follow suit.
Records released to me under Freedom of Information demonstrate that the Department had been aware of the delays in releasing records for over a week before affected people learned the news on the Friday of a bank holiday weekend.
Given the timing, it is no surprise that apart from this publication, there was no coverage of the issue.
In fact, media reaction to how the system is working so far has been muted to say the least. The news that records were being withheld from affected people despite repeated promises from the Minister should have been one of the most discussed issues in the country yesterday.
Instead, media attention was steadfastly focused on a priest who refers to people who have exercised their reproductive right to an abortion and LGBTQ+ people (people like me) as ‘sinners’.
‘Not too late’
It is not too late for the Minister to finally listen to affected people in a meaningful way.
The deeply flawed Mother and Baby Institutions Payment Scheme Bill 2022 is currently before the Oireachtas. It is in the Minister’s gift to amend the redress bill to ensure it represents a true measure of justice.
Indeed, there is nothing preventing the Minister from using the redress bill to introduce amendments that put right both the Institutional Burials Act and the Birth (Information and Tracing) Act.
After all, in October 2020, the Minister had no difficulty in legislating for two entirely unrelated issues in the same bill when he amended the Judicial Council Act at the same time that he attempted to seal the records of the Mother and Baby Homes Commission.
Claire McGettrick is an Irish Research Council postgraduate scholar at the School of Sociology at University College Dublin. She is co-founder of Adoption Rights Alliance and Justice for Magdalenes Research and co-director of the multi-award-winning Clann Project.
The Journal is launching a new six-part documentary series about mother and baby homes, telling the stories of women and children who passed through the system.
The first episode of Redacted Lives will be released on Thursday, 10 November. Subscribe to the series wherever you get your podcasts.
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