The Minister for Children Roderic O'Gorman has said that it is difficult for him to create a judgement on whether the Commission of Investigation into Mother and Baby Homes acted within its legal remit when it deleted audio files of witness testimony.

The Minister told the Oireachtas Committee on Children that the Commission has insisted it has acted in good faith and that it has outlined all its rights and responsibilities in the context of GDPR and data protection.

He said he has engaged with the Attorney General on the destruction of the tapes and he said that engagement is continuing.

Some survivors have said they did not consent to the files being deleted.

It is understood that the Commission has told Minister O'Gorman that it does not believe it is possible to retrieve the deleted recordings.   

The Minister had written to the Commission chair Yvonne Murphy asking if some technical way could be found to recover the data.

Asked by the Social Democrats TD Jennifer Whitmore whether he believed the Commission was within its remit to destroy the files, the Minister said it was difficult for him to create a judgment without having a sense of what the Commission in each individual situation.

Ms Whitmore asked whether the Minister would extend the timeframe of the Commission given that it is due to be dissolved at the end of the month.

She said it was a time-sensitive situation and that if the Minister was still trying to establish the legality of the action, that time should be provided.

She said many survivors had passed on their concerns to the gardaí and the Data Protection Commission (DPC). 

The Minister said he had to consider a range of factors but his biggest concern was that the archive of the Commission is due to transfer to his Department shortly.

He said if the lifespan was extended for an investigation by the DPC or others, the Commission would have to have its archive.

Ms Whitmore said that once the Commission was dissolved, there would be no conclusion and it would all be swept under the carpet again and she said that could not be allowed to happen. 

He said he believed a better outcome for survivors could be achieved by allowing access to information in a GDPR compliant way and potential use of rectification.

Ms Whitmore said if that approach was taken there would be no accountability. 

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Chairperson of the Oireachtas Committee on Children, Kathleen Funchion, called for clarity about which records of survivors' testimonies have been destroyed, whether the process has started and why this has happened.

Speaking on RTÉ's News at One, Sinn Féin TD Ms Funchion said the committee is being told very clearly from survivors who gave testimonies, and who remember the day because "it was a such a traumatic experience", that they were not told that these records were going to be destroyed. 

She said pressure must be put on Minister O'Gorman to "ensure he gets answers for people" and if those answers are not forthcoming, she said there is a very strong argument for extending the commission. 

Ms Funchion said now, having looked at the report, survivors are telling her they cannot exactly find their evidence or testimony in the report, "or else they find a version of their story, but they are very strong in the case that, that is not exactly what they said to the commission". 

People Before Profit TD Bríd Smith has said it is "outrageous" and she maintained survivors "were not told the recordings would be destroyed".

She said survivors are "furious and deeply offended" at what happened. 

Ms Smith added that her party was "fully supporting" the campaign to ensure that the Commission's term was extended.

Catherine Connolly, TD for Galway West and Leas Ceann Comhairle, called on Mr O'Gorman to publish all correspondence he had with the Commission of Investigation into Mother and Baby Homes.

Speaking on RTÉ's Drivetime, Ms Connolly called for immediate clarity on whether the testimonies of survivors has been destroyed, and if this is the case, she called for evidence to show that witnesses were made aware that their testimonies were going to be destroyed.

Ms Connolly said without "a quick resolution" confidence in the system is being "undermined".

She said the legislation under which the Commission of Investigation was set up "very specifically" stated that there is an obligation on the Commission to retain all evidence of witnesses.

The Commission on Mother and Baby Homes is due to be dissolved on 28 February.

The inquiry said that witnesses were told in advance that audio files of their testimonies would be deleted after being used as an "aide memoire" for the report.

In a letter sent to the committee last week, Mr O'Gorman said the commission asked for witnesses' permission to record their testimonies on the clear understanding that they would only be used as an aide memoire for compiling the report and would then be destroyed.

Mr O'Gorman said that while he did not speak for the commission, this approach was taken in order to protect people who wanted to engage confidentially with the inquiry.

"In the absence of such arrangements, those whom the State wished to encourage to engage with the process might have been inhibited from ever disclosing information. Such inhibition could have defeated the very objective of establishing the inquiry," he said.

More on Mother-and-Baby Homes

Five hundred and fifty people provided personal accounts to the confidential committee module of the commission's work consisting of the "lived experiences" of survivors.

This was separate to the inquisitorial part of the commission consisting of sworn evidence.

Survivors' group Clann has asked those affected to report it to the gardaí and to the Data Protection Commission.

The DPC has asked the commission to provide a legal basis for the deletion of the records.

On calls to extend the commission, the minister said it was not clear that an extension was necessary to clarify matters.

In his letter, Minister O'Gorman said a decision will be informed by the advice of the Attorney General and that he is aware calls have been made for an extension to enable it to deal with concerns relating to the report and records.

"It is not clear at this point that an extension is in fact necessary to clarify these matters, or that extending the timeframe of the committee would assist in this regard," he said

The minister also said a call to extend the time frame of the commission, which was established in 2015, "must have regard to the fact that the Independent Commission completed the inquiries it was established to conduct when submitting its final report last year".

He said a decision will also be influenced by an "information gathering exercise" by his department who have asked the commission whether notes and tapes of interviews with survivors could be salvaged.

The minister has sought further information from the chair of the commission, Justice Yvonne Murphy, on whether "with the assistance of technical legal expertise, it may be that personal data may be retrieved from any source, including a server or from backup copies that might have been made including where such backup copies may be stored off site".

Ms Funchion said members believed the minister must address the hurt caused by the report's conclusion that there were no forced adoptions or abuse in the homes. 

'A trust was broken and something has to be done' 

Adoption Rights Activist Noelle Brown has appealed to the public to support her call to delay the dissolution of the commission until the missing audio files testimonies are retrieved.

Speaking on RTÉ's Today with Claire Byrne, Ms Brown said "it's hugely upsetting" and "we are asking for support now to ask the Government not to let the commission dissolve before those 550 testimonies are found, that the recordings are found".

She said they were not told in advance that recordings of their testimonies would be destroyed.

Ms Browne said she does not know if there were transcripts of the testimonies, but she said there were recordings and they were not told these would be destroyed.

She said: "Nobody told us they would be destroyed. We didn't consent to that."

Ms Browne said the minister should ask the commission if it can retrieve the audio recordings. 

She said by sharing their stories and testimonies, an archive is being created and a reflection of the history of what happened in these institutions.

Additional reporting Mary Regan