Association of Professional Genealogists in Ireland
30 Harlech Crescent,
Clonskeagh,
Dublin 14.
26th September 2008
Dear Mr. Hawkes,
Please find attached our submission in relation to the Draft Data Protection (Archives &
Historical Research) Regulations, 2008.
We have provided answers to the three questions located at the end of the ‘Background Paper’
and we have also provided a suggested wording addition to the regulations (given in red).
We look forward to hearing from you about this issue in due course.
Yours sincerely,
Robert C. Davison MAPGI
Hon. Sec.
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1.
Do the draft Regulations strike the right balance between the legitimate public
interest in research and the rights of living individuals?
No. As these regulations do not discriminate between varying degrees of sensitivity of data they
would have the unfortunate effect of closing access to all records other than Public Records. The
regulations’ definition of ‘personal data’ is too broad. Their effect would mean that even the
most innocuous reference to an individual could be defined as personal data and access to it
needlessly and pointlessly denied. In all likelihood, through fear of breaching them, these
regulations would cause data controllers to be unnecessarily cautious in allowing access to
archival and historical data within their possession.
2.
Is the proposed 100-year rule in terms of access to personal data reasonable?
Given what we have outlined in our answer to question 1 we believe that the term of 100 years
could be deemed excessive. The regulations need to allow for data controllers to use discretion in
applying a tariff of ‘up to 100-years’ where the data would not normally be considered sensitive
or where the data subject could never have assumed that such data would be kept secret for 100years or until after her or his death.
3.
Should the Regulations contain other provisions?
Yes. The regulations should clearly state they do not extend to data which is a matter of Public
Record. Also, they should not extend to data which was compiled less than 100-years ago but to
which general public access has been a matter of long standing practice. An example of this
would be the 1911 census returns which have been available without any public outcry since
1961. We assume that it is unlikely that the Data Protection Commissioner will expect the
Director of the National Archives to deny access to the 1911 census returns after these
regulations have been signed into force.
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Data Protection (Archives & Historical Research) Regulations, 2008
I, BILLY HAWKES, Data Protection Commissioner, in exercise of the powers conferred
on me by section 1 (3C) of the Data Protection Act, 1988 (No. 25 of 1988), as inserted
by section 2 of the Data Protection (Amendment) Act 2003 (No. 6 of 2003) and with
the consent of the Minister for Justice, Equality and Law Reform, hereby make the
following regulations:
1. (1) These Regulations may be cited as the Data Protection (Archives & Historical
Research) Regulations, 2008.
(2) These Regulations shall come into operation on the x day of X, 2008.
(3) These Regulations shall apply to archives or departmental records within the
meaning of the National Archives Act, 1986 (No. 11 of 1986) and to data kept solely
for the purpose of historical research.
2. in these Regulations"archives" means archives or departmental records within the meaning of the National
Archives Act, 1986;
"data subject" means an individual who is the subject of personal data.
“the Act” means the Data Protection Act, 1988 as amended by the Data Protection
(Amendment) Act 2003
“personal data” means data relating to a living individual who is or can be identified either from
the data or from the data in conjunction with other information that is in, or is likely to come
into, the possession of any person given access to the data;
“data kept solely for the purpose of historical research” means data consisting of personal data
which is no longer required for the legitimate purpose for which it was obtained.
3. Where archives or data kept solely for the purpose of historical research include personal data, other
than personal data relating to a person acting in an official capacity, the relevant data controller shall
take the following measures for the purpose of safeguarding the fundamental rights and freedoms of
the data subjects concerned: (a) access shall not be granted to such data to persons other than the data subject, or a person
acting on their behalf, where access would not otherwise be permitted in accordance with the
provisions of the Act or as provided for in these Regulations; and
(b) the data shall be subject to security measures at least equivalent to those laid down in Section
2C of the Act
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(c) the data (other than in an anonymised form) shall not be disclosed without the consent of the
data subject or a person acting on their behalf, where such disclosure would not otherwise be
permitted in accordance with the provisions of the Act or as provided for in these Regulations.
4. (a) Regulation (3) shall not apply where the data controller in question is satisfied that the data is no
longer personal data due to the subject of the data being deceased;
(b) for the purpose of subparagraph (a), and without prejudice to subparagraph (c), the data
controller may assume that an individual is no longer alive where the most recent record
created in respect of her or him is more than 100 years old and the data controller has no other
evidence suggesting that the individual is alive;
(c) for the purpose of subparagraph (a), and without prejudice to subparagraph (b), the data
controller may assume that an individual is no longer alive where there is reliable evidence that
the individual, if alive, would be more than 100 years old, and the data controller has no other
evidence suggesting that the individual is alive.
(d) for the purpose of subparagraph (a), the data controller may, in any event, assume that an
individual is no longer alive where it has reliable evidence of such.
5. (a) These regulations do not extend to data which is a matter of Public Record;
(b) or to data where general public access has been a matter of long standing
practice.
Explanatory Memorandum: These Regulations stipulate the conditions under which records retained
solely for archival or historical purposes and which contain personal data, other than those relating to
an individual acting in an official capacity, may be made available for the purposes of public inspection
or historical research.
The Data Protection Acts provide a basis whereby the records in question, which have ceased to be
retained for any purpose other than for their original purpose, may be made available for archives and
historical purposes earlier than the period stipulated in Regulation 4 above where a person has given
consent for such access or display. Equally the data controller itself may access the records for archives
or historical research purposes or enter into a contract with a third party entity on the basis that such a
contract provides appropriate safeguards.
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