THE FIRST INTERIM REPORT
from the
Archives Advisory Group
Presented to the Tanaiste
And Minister for Justice, Equality and Law Reform
25th September, 2006
First Interim Report of the Archives Advisory Group
1.
The Archives Advisory Group was appointed by the
Minister for Justice, Equality and Law Reform, Michael
McDowell,T.D., with the following terms of reference.
'To advise the Department on the historical value of the archive
records which it holds, or are under its control, which are over
30 years old.
To advise the Department on the arrangements it could put in
place to make records available for the purpose of advancing
academic research, including any guidelines and conditions that
could be applied by the Department in granting access to the
records for that purpose.'
2.
The membership of the Group included;
Professor Mary Daly, Principal, College of Arts and Celtic
Studies, UCD, (Chairperson)
Professor Ronan Fanning, Professor of Modern History, UCD
Professor Dermot Keogh, Professor of History, UCC
Professor Eunan O'Halpin, Professor of Contemporary History,
TCD
Dr. Gerard Hogan, SC., Lecturer in Law, Law School, TCD
Dr. Margaret O'Callaghan, Lecturer in Politics, Queens
University, Belfast
Mr. Thomas Quinlan, Senior Archivist, National Archives
Mr. Val O'Donnell, former Assistant Secretary, Department of
Justice, Equality and Law Reform.
Mr. Gerry Shannon, Department of Justice, Equality and Law
Reform was appointed Secretary to the Group.
3.
At the launch of the Group on 10 February 2006 the
Minister asked the Group to present its final report to him by the
end of 2006. The Minister has also indicated that he would be
happy to receive interim reports on the Group's work.
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4.
The Group has held six meetings (including the Inaugural
meeting) to date and considers that it is in a position to submit a
short interim report on its work to date, including
recommendations to the Department.
5.
Methodology
The Group considers it important to describe the methodology
which it adopted in reviewing the records of the Department that
are over 30 years old which have been unavailable for
inspection - including records withheld under the provisions of
the National Archives Act, 1986. (Hereinafter referred to as ‘the
Act’).
6.
The Department presented the following information to the
Group at its first meeting relating to these records.
6.1 Details of all files 30 year-old or more relating to Security
and Northern Ireland matters, withheld by the Department.
Some of these files date from 1922. However, most of these
records date from 1934 - when the present file classification
system was adopted by the Department.1
6.2 Available information on files currently in the National
Archives, but not available for public inspection. These are
either files which were retained by the Department and
deposited for safekeeping with the former Public Record Office
of Ireland when it functioned under the auspices of the
Department; or are files which have been withheld by the
Department pursuant to Section 8 of ‘the Act’. They include a
number of files dealing with personnel matters, which are
outside the scope of the Group's terms of reference.
1
In 1993, 1145 files from this series were released by the Department and made available for public
inspection in the National Archives. Since then, 50 files from the series were released to the National
Archives, bringing the total number released to 1195.
2
6.3 Information on files in the 'H' series of files. These files
date from the period 1922 to 1934 (when the present file
classification system was adopted). It consists of 320 distinct
file series ranging across most, if not all, of the work of the
original Home Affairs Ministry, which was subsequently
renamed the Department of Justice.2 Most of the 'H' file series
were made available by the Department to the National
Archives for general public release around 1990. However,
some material in the series was retained at that time, including
files which relate to personnel matters.
6.4 Finally, the National Archives provided information on
files from 16 different file series - many dating from the 1930s which are held in the National Archives. The file series involved
are described in Appendix 2. The status of these files is unclear
because it cannot be ascertained if they were ever reviewed
under the provisions of ‘the Act’. All of these files are
effectively closed to public inspection, until such time as they
are reviewed by the Department. This review is currently under
way. Some of the file series involved relate to personnel
matters.3
7.
The grounds on which a Certifying Officer appointed
under ‘the Act’ may certify that a record should be withheld
from public inspection are,
“that to make them available for inspection to the public –
(a)
would be contrary to the public interest, or
2
Under the provisions of the Ministers and Secretaries Act, 1924, the original name of the Department
(in 1922) changed from the ‘Ministry of Home Affairs' to the 'Department of Justice'.
3
When the Department moved from Government Buildings in 1967 to 72/76 St. Stephen's Green, the
remaining pre-1935 (closed) files were not moved. Only some of the post-1935 file series were
transferred to 72/76 St.Stephen's Green at that time. It was quite common in the early 1970s for old
files to be retrieved from the basement of Government Buildings. In the 1970s, files from Government
Buildings were deposited with the former Public Record Office of Ireland for safekeeping. When the
functions and records of the PROI were transferred under the National Archives Act, 1986 to the newly
established National Archives, these records came into the custody of that institution.
3
(b)
would or might constitute a breach of statutory duty, or
a breach of good faith on the ground that they contain
information supplied in confidence, or
(c)
would or might cause distress to living persons on the
ground that they contain information about individuals,
or would or might be likely to lead to an action for
defamation.”4
8.
The Group sought the Opinion of its legal member, Dr
Gerard Hogan, SC., on the correct interpretation of section
8(4)(c) of above provisions. Dr Hogan's Opinion is included at
Appendix 1 of the report. The Group unanimously adopted Dr.
Hogan's Opinion on this important matter, which applies,
equally, to the functions and responsibilities of all Certifying
Officers.
9.
The Group also considered the arrangements for access to
archives in other jurisdictions, including Australia. It examined
the Council of Europe publication 'Access to Archives' which
consists of 'A Handbook of Guidelines for implementation of
Recommendation No. R (2000) 13 on a European Policy on
Access to Archives'.
10. After reviewing the available information on the records of
the Department that are 30 years old or more, the Group decided
to concentrate its attention, initially, on the Security and
Northern Ireland archive - the category referred to at paragraph
6.1 above. This was based on the Group's assessment of the
likely historical significance of this archive.
11. The Group decided that members would select files for
examination by reference to the information referred to in
paragraph 6.1 above. All files in each box containing a
requested file were examined by members. Members focused on
particular areas of professional interest and expertise, including
4
Section 8(4) of the National Archives Act, l986.
4
the political, social, legal, historical, archival domains, and on
research aspects.
12. In the first phase of its work, the Group decided to
concentrate its reading on files containing records dating up to
1956. This was chosen on the basis that it covered the period up
to 50 years ago. As a matter of principle, the Group strongly
favours the general release of all records that are over 50 years
old, unless there are special reasons for the further withholding
of individual records, pursuant to the provisions of section 8(4)
of ‘the Act’. (See also paragraph 19 below).
13. On the basis of files examined to date, the Group considers
it is in a position to make a general assessment in relation to the
period up to 1956. As a result of the range of subject matters and
the proportion of files examined to date, the Group confirms that
they are sufficiently representative to enable it to draw general
conclusions, and make recommendations under its terms of
reference.
14. The Group wishes to acknowledge the ready assistance of
the Department in facilitating access to the files in this archive,
and in arranging to accommodate the reading needs of the
Group. It also wishes to acknowledge the assistance of the
National Archives in providing any additional information and
assistance sought from it by the Group.
15. In the next phase of its work, the Group will concentrate
on examining records relating to Security and Northern Ireland
matters dating from 1956 to 1968. The Group intends
subsequently to examine similar records for the period from
1969, which are 30 years old.
16. The Group also proposes to examine records in the ‘H’
series of files (See paragraph 6.3 above), which have not been
released for public inspection.
5
17. When this work is complete, the Group intends to examine
other categories of records in other areas of the Department,
which are 30 years old, or more, and which have not been
transferred to the National Archives for public inspection.
6
18.
Conclusions
The Group's conclusions are as follows:
18.1 In so far as events, individuals and issues up to 1956 are
concerned, the files held in the Security and Northern Ireland
Division;
- contain a great deal of important historical material on
the early decades of the State and on anti-State
organisations, movements and individuals which is not
available elsewhere and which will contribute
significantly to the understanding both of state policy
and institutions, and of anti-State and radical political
organisations,
- also contain valuable material relating to judicial
decisions, and proposals for law reform and legislative
change in areas of both civil and criminal law,
- cast much fresh light on the deliberations of the
Department and the Minister in terms both of individual
cases and of the evolution of policy,
- contain very little material, such as medical and private
personal information that is still of such sensitivity that
it cannot be released, although some such material may
need to be withheld from public inspection for a further
period.
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19.
Recommendations
The Group makes the following recommendations for action by
the Department under the terms of the National Archives, Act,
1986, based on its work to date.
19.1 The view of the Group is that the best practice for
releasing records of historical value which have hitherto been
retained or withheld, is through the timely transfer of such
records to the National Archives and making them available
there for general public inspection, as per the procedures
provided under ‘the Act’. This approach will ensure that
maximum access is provided to those wishing to examine
important historical material which has not been made available
for examination or research before.
19.2 The archives of the Security and Northern Ireland Division
are of high historical value. The Group is strongly of the view
that all such records that are over 50 years old (according to the
definition of the age of Departmental records contained in ‘the
Act’) should be transferred to the National Archives and made
available for public inspection at the earliest possible date.
19.3 The Group recognises that the Certifying Officers,
appointed under ‘the Act’, are the relevant statutory authorities
for deciding on the transfer of Departmental records to the
National Archives for public inspection. It recommends that any
examination and certification of the records referred to at 19.2
above, by the relevant Certifying Officer, should be undertaken
within a period of 12 months. (See 19.6 below).
19.4 The Group considers that some files in the archive can be
transferred to the National Archives without any detailed
examination being carried out by the relevant Certifying Officer.
These include;
- Files consisting only of newspaper cuttings.
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- Files containing material or information which is
already in the public domain.
In this connection, the Group would like to stress the importance
of avoiding the release of only a proportion of the record(s)
relating to the same subject matter, if at all possible.
19.5 The Group is also of the view that all records in this
archive relating only to proposals for legislation and to legal
cases coming before the Courts, should be transferred to the
National Archives.
19.6 To enhance the prospects of early access to these records,
the Group recommends that the relevant Certifying Officer
should arrange any examination and certification of these
records so as to enable the records to be released to the National
Archives in stages over the next 12 months. The Group suggests
the following timetable:
 All records up to 1932 to be released by 31 December
2006
 All records up to 1939 to be released by 31 March 2007
 All records up to 1948 to be released by 30 June 2007
 All records up to 1956 to be released by 31 September
2007.
19.7 In considering whether any records in the
Security/Northern Ireland Division should be withheld for a
further period in the Department, pursuant to the provisions in
section 8(4) of ‘the Act’, the Group recommends that the
relevant Certifying Officer should apply the following
parameters or guidelines in relation to all such cases:
 A presumption in favour of release in the public interest
of any records that are over 50 years old (under the
definition of the age of a record in ‘ the Act’) to the
National Archives.
9
 Abstraction of a part or parts of a file (rather than the
retention of the file in its entirety) should be used where
possible and practicable in relation to any record which is
proposed to be withheld.
 Where possible, digital imaging should be used to create
easily readable redacted colour copies, to be placed on
the file being released.
 Any decision to withhold a record that is over 50 years
old for a further period should be taken in most
exceptional circumstances, for stated reasons, and citing
the relevant provision or provisions in section 8(4) of ‘the
Act’, which is/are being invoked in relation to any such
record or records.
 In addition, any decision to withhold such a record for a
further period, under the provisions of section 8(4)(c ) of
‘the Act’, should have regard to the contents of the
Opinion on the interpretation of that provision provided
by Dr. Gerard Hogan, SC., included at Appendix 1 of this
report. (See also paragraph 8 above).
 An understanding that the relevant Certifying Officer
- will make any such withheld records, or
abstractions from released records, available to
bona fide academic research at a convenient
location (including in the office(s) of the
Department or other location nominated by the
Department)
- will create adequate metadata in relation to any
such withheld records or abstractions, that could be
made available in connection with bona fide
academic research
10
- will review any such withheld records or
abstractions again with a view to their release to
public inspection within a period of five years from
the decision to withhold them.
19.8 For so long as it remains in existence, the Group should
have a monitoring role in relation to all decisions by the relevant
Certifying Officer to withhold any record that is over 50 years
old, including the extent to which all such decisions have had
regard to the above parameters/guidelines.
19.9 In those exceptional cases where the Certifying Officer is
doubtful as to whether a particular file should be released, the
Group recommends that the officer should have the opportunity
of taking external professional advice. This is a role which the
Group itself could readily perform for so long as it is in
existence. This issue will, of course, continue to arise in the
future and the Group accordingly recommends that the Minister
should establish a standing advisory group whose task it should
be to give advice on archival matters in general and with
specific reference to the release of particular files.
19.10 The Group has consulted with the relevant Certifying
Officer for the records of the Security/Northern Ireland
Division. As a result, it is satisfied that the process of examining
the records referred to in 19.2 above, and transferring them to
the National Archives in the time frame set out in at 19.6 above,
cannot be achieved unless a suitable person or persons is/are
assigned on a full-time basis to this work for the period required.
19.11 Accordingly, the Group recommends that the Department
should appoint an officer(s), with suitable experience at a senior
level, to ensure the implementation of the timetable set out at
19.6 above. The Department might regard the engagement of
retired civil servants, with suitable experience at a senior level,
as very suitable for the work.
11
19.12 The Group recommends that the person(s) assigned to this
work should be required to discharge all the duties of a
Certifying Officer in regard to the records involved. This will
include putting procedures in place for access to any withheld or
abstracted records, the creation of schedules and metadata of
such records, and in assisting the Group in carrying out the
monitoring role recommended in 19.8 above.
Signed:
Professor Mary Daly (agreed)
Professor Mary Daly, Chairperson
Signed:
Professor Ronan Fanning (agreed)
Professor Ronan Fanning
Signed:
Professor Dermot Keogh (agreed)
Professor Dermot Keogh
Signed:
Professor Eunan O’Halpin (agreed)
Professor Eunan O’Halpin
Signed:
Dr. Gerard Hogan, SC (agreed)
Dr. Gerard Hogan, SC.
Signed:
Dr. Margaret O’Callaghan (agreed)
Dr. Margaret O’Callaghan
Signed:
Mt Thomas Quinlan (agreed)
Mr. Thomas Quinlan, Senior Archivist
Signed:
Mr Val O’Donnell (agreed)
Mr. Val O’Donnell, former Assistant Secretary,
Department of Justice, Equality and Law Reform
Signed:
Mr Gerry Shannon (agreed)
Mr. Gerry Shannon, Secretary to the Group,
Department of Justice, Equality and Law Reform
12
Appendix 1
Opinion of Dr. Gerard Hogan, SC., on the correct
interpretation of section 8(4)(c) of the National Archives Act,
1986.
Opinion of Counsel
Introduction
1.
One of the key issues confronting the Archives Advisory
Group concerned the interpretation of section 8(4)(c) of the
National Archives Act 1986 and, specifically, how the issue of
whether the release of any given records "would or might cause
distress or danger to living persons" should be approached. This
sub-section provides as follows:
"(4) An officer of a Department of State authorised for the
purpose of this subsection may, with the consent of an officer of
the Department of the Taoiseach so authorised (except in
relation to records of the Department of the Taoiseach), certify,
in relation to particular Departmental records, or a particular
class or classes of Departmental records prescribed in
accordance with subsection (11), which are more than 30 years
old and are specified in the certificate, that to make them
available for inspection by the public(a) would be contrary to the public interest, or
(b) would or might constitute a breach of statutory duty, or a
breach of good faith on the ground that they contain information
supplied in confidence, or
(c) would or might cause distress or danger to living persons on
the ground that they contain information about individuals, or
13
would or might be likely to lead to an action for damages for
defamation."
2. Applying standard principles of statutory interpretation, it is
plain that the sub-section must be read in its entirety. The
overall tenor of the 1986 Act is to mandate the release of
records which are more than 30 years old. Section 8(4) must be
regarded as being in the nature of a derogation from that
principle and must therefore be construed with some degree of
strictness.
The meaning of the phrase “distress….to living persons"
3. Section 8(4)(c) contains two separate elements: (i) where the
distress or danger to living persons on the ground that they
contain information about individuals and (ii) where the release
might lead to an action for defamation. The references to danger
to living persons and to actions for defamation provides further
support for the argument that these exceptions are relatively
strict and I am, accordingly, of the view that the words "distress
to living persons" must be understood in that context. In any
event, it may be noted that the wording of the sub-section is
objective in nature.
4. All of this, in turn, means that mere embarrassment or a
purely subjective claim of distress will not suffice. There must
be many instances where, for example, the release of a file will
re-kindle memories of incidents which have been long forgotten
and which, in turn, might embarrass living persons who were
referred to therein. If that were the test, then many files which
happened to refer to living persons would in practice be exempt
from disclosure. That could scarcely have been the intention of
the Oireachtas.
5. I am thus of the view that the reference to "distress" to living
persons suggests that the release of the records must involve
something beyond embarrassment. In my judgment, this
14
requirement in section 8(4)(c) means that there must be a real
prospect that the disclosure will cause something in the nature of
a high level of anxiety and mental anguish to a living person or
where highly private and intimate personal details were thereby
to be disclosed.
6. The application of these principles may, of course, present
difficulties in individual cases. While each case must, of course,
be considered on its own merits, the following factors may
nonetheless be of general assistance in the application of this
statutory test.
(a) Was the subject matter of the file ever a matter of public
record?
7. If the subject matter of the file was ever a matter of public
record, then it is hard to see how disclosure could ever cause
"distress" in this sense, It is true that disclosure may well rekindle memories of an event which is long forgotten, but that in
itself will rarely (if ever) satisfy the statutory test. Should,
however, the file contain highly private and personal details not
otherwise in the public domain, different considerations may
apply. The obvious solution here is to redact that part of the file
which contains those details.
(b) Passage of time
8. The longer the period of time that has elapsed since the event
in question, the less likely it is that disclosure will cause
distress.
(c) Private and personal details
9. By contrast, different considerations apply in the case of
highly private and personal details. These details could include
- depending on the context - matters such as medical conditions,
issues of personal hygiene, sexual history and sexual orientation.
15
It is also possible, for example, that in some circumstances the
detailed personal financial affairs of a named person might
come within this rubric. Here the presumption must be against
disclosure of these details, with redaction of the file as the
obvious solution.
10. This does not mean, however, that other private details
would also fall within this particular exception. It is true that,
depending again on the particular context, matters such as age,
address, occupation, marital status and political and religious
beliefs might well be regarded as private and personal matters.
But section 8(4)(c) is not, as such, designed to safeguard the
privacy interests of the persons named on the file. It is rather
designed to protect against any distress caused by such
disclosure. It is hard to see how, absent special and unusual
circumstances, the disclosure of such matters would cause
"distress" in this sense, even though the disclosure would reveal
private matters which the person named in the file might wish to
keep private.
(d) Suspicion of the commission of a criminal offence
11. A particular problem is posed where a file contains specific
and detailed allegations against a named person contending that
they were guilty of a criminal offence, but where that person has
never been charged with such an offence. Much will depend
here on the particular circumstances, but, in general, there must
be a presumption against disclosure while the named person is
still alive. Quite apart from the issue of defamation, the
publication of such records - very probably emanating from an
official source such as a Garda report - could well be tantamount
to convicting the individual of the offence in question in the
eyes of the public. In most circumstances, the publication of
such an unproven and untested allegation - which, it must be
borne in mind, could be based on the most slender of evidence "would or might cause distress to living persons."
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12. While acknowledging that there must be a presumption
against disclosure in such circumstances, this is not an
invariable rule. Much will, of course, depend on the seriousness
of the allegation. There may well also be circumstances, for
example, where such allegations against the named person have
been publicly ventilated in the past and where the allegation is
already common currency. Subject to the possible issue of
defamation5 , the release of a file which simply repeats the
allegation is unlikely in those circumstances to cause distress in
the sense in which this term is used in the 1986 Act
13. The historical context of the allegation may also be relevant.
Thus, for example, the disclosure of an allegation that a named
living person was a member of an illegal organization in the
distant past (e.g., during the Emergency period of 1939-1945) is
unlikely to cause distress in the sense simply on the basis that
this is just past history which carries no particular connotation
so far as the present is concerned. Of course, entirely different
considerations may well arise where the allegation relates to the
more recent past or where the allegation is a particularly grave
one.
Whether the distress is to be confined to the person named in the
file or does it extend to immediate family and next of kin
14. A related issue is whether the distress is to be confined to
the person named in the file or whether it might extend to that
person's immediate family and next of kin. In my view, if the
Oireachtas had intended that the distress requirement be
confined to the person named on the file, it could readily have
said so. It is, therefore, quite possible that the release of certain
kinds of information might cause "distress" (in the restricted
5
Where the allegation had already been ventilated in the past, the disclosure of a file some thirty (or
more) years later might be thought to present a fairly low defamation risk where that person had not
previously taken action to defend his good name such as by insisting on an apology or, failing that, by
taking appropriate action. While accepting that this would involve a fresh publication which would
entitle the named person to sue without any immediate limitation issues, in practice, absent very special
circumstances, the fact that such person had not previously taken action to protect his good name might
be thought to represent a major obstacle to successful action for defamation thirty years later.
17
sense in which we have understood that term) to a living person
(typically a parent, spouse or child of the person named), even
though that person was not the person named in the file. One
could well imagine, for example, that the casual disclosure that a
particular deceased person had been treated for venereal disease
would (or, at least, might) cause distress in this statutory sense
to members of the deceased's family.
15. While I am thus of the view that section 8(4)(c) does not
exclude this possibility on a priori basis, I am equally of the
view that in those cases, the threshold is, if anything, higher.
While it thus possible that the release of a particular file could,
for example, cause distress in this sense to the surviving spouse
or child of a person so named, this will, generally speaking, be
much more difficult to establish than if the person so named
were actually alive.
Dr. Gerard Hogan SC,
Law Library Building,
149-151 Church St.,
Dublin 2
August 15, 2006
18
Appendix 2
Series of files held in the National Archives which are
currently under review
File series
1/3/10/16/31/40/44/65/74/75/88/89/98/101/102/-
Subject matter(s)
No. of files
Office administration
Personnel matters
Annual Estimates
Prison administration
Coroners matters
Land registry matters
Courts policy
Firearms and explosives
Crime,
breaches of licensing law
Liquor Licensing matters
Lotteries & sweepstakes
Landlord and tenant matters
Licences for Dances, Theatres
Information for/in publications
Censorship of publications
58
122
24
23
43
72
8
150
17
360
(approx)
68
43
27
35
230
(approx)
116/1-
Bravery awards
685
(approx)
116/-
Miscellaneous matters
167
Total :
2132
(approx)
19