Tag Archives: Simon McGarr

Solicitor Simon McGarr is fighting to get access to records for a Mother and Baby Home survivor

This afternoon.

The Government promised to ensure Mother and Baby Home survivors would get access to their personal information, contained within the Commission of Investigation into Mother and Baby Homes’ records, in line with EU law, or more specifically General Data Protection Regulation (GDPR).

But it hasn’t done so, citing a Statutory Instrument from 1989.

However, the SI is inferior to GDPR.

Solicitor Simon McGarr, in his latest Gist article, explains:

“…on behalf of a client, on the 17th September my office reported Ireland for this ongoing breach of EU law to the European Commission.

“On the 10th November 2021 the Commission wrote back, confirming it had opened an investigation on foot of that complaint and that it had written to the Department;

‘We wrote to the Department of Children, Equality, Disability, Integration and Youth as part of the investigation of this complaint. They informed us that the Minister for Health is progressing new Regulations concerning access to health data as a matter of priority and that officials from the Department of Children are also liaising with the Department of Health on this issue. The Department have informed us that the new Regulations intend to take into account of the requirements of the GDPR, and the issue of mandatory consultation with a health practitioner will be given further consideration. They stated that it is anticipated that the new Regulations will be in place by the end of the year.’

“In response, I pointed out that the Minister had not accepted that the requirement for a mandatory consultation with a health practitioner would be changed, but merely that it would be given ‘further consideration’.

“I then supplied the Commission with a copy of the new Legislative Heads for the same Minister’s proposed Birth Information and Tracing Bill, drawing their attention to Section 10(2), which repeats and continues the same block on direct access, and maintains the same requirement from the 1989 SI, that survivors’ medical records would be sent to doctors, not to them directly.

“We’re awaiting their reply, but it appears as though Ireland remains under investigation.

“And, for survivors, a right that everyone seems to acknowledge they have—to access their medical data under the GDPR—continues to be blocked.”


The Gist: Ireland under Investigation


From top: Sinn Féin’s chairman of the Public Accounts Committee Brian Stanley TD; Solicitor Simon McGarr

This morning/afternoon.

Further to controversy caused by tweets from a Sinn Féin TD celebrating a 1979 IRA attack and poking fun at Tanaiste Leo Varadkar’s sexuality…

…Solicitor Simon McGarr writes:

Twitter is a reflection of real life- just as a golf clubhouse, a GAA clubhouse and a nightclub are each different reflections of real life. They give expression to an aspect of public opinion. But Twitter has also become a broadcast system for official actors.

Politicians are used to broadcast media- that’s what most of them have trained to use for decades.

But a broadcast medium that is also an archive of all the dumb things we’ve ever said in passing and a two-way communications system? As [Sinn Féin TD and chairman of the Public Accounts Committee] Brian Stanley realised as he deleted his account, “we’re not as good at it.”

Meanwhile, the Government moves forward on laws to regulate citizen’s use of the internet and creating a crime of making an internet post that “causes alarm or distress to the other person”.

This points to a crunch happening from the middle of next year, when people who are self-confessedly bad at understanding and using the communication elements of social media will try to draw up rules that will restrict a good chunk of the world’s usage of it.

Ireland’s biggest Twitter-storm is yet to land.’ [More at link below]

The Gist: Storms in a Tweetcup (Simon McGarr)

Online Safety and Media Regulation Bill (Gov.ie)

This evening.

On RTE’s Drivetime.

Journalist Sarah McInerney asked Minister for Children Roderic O’Gorman about a report in the Irish Examiner that stated Mr O’Gorman proposed two amendments to the Commission of Investigation (Mother and Baby Homes and certain related Matters) Records Bill 2020 which will be debated in the Dail this evening (link above)

From the interview:

Roderic O’Gorman: “Just first of all, Sarah, the Bill that I’m bringing forward does not seal the archive. The archive is the decision on the 30-year sealing of the archive was made when the Commission of Mother and Baby Homes was established in 2015.  What my Bill is trying to do is to take one really valuable piece of that archive, this database which can be used to help children or indeed mothers who were in Mother and Baby Homes to trace family relatives, to take that database out of the archive and give it to Tusla.

“I will be bringing forward two amendments. One of those amendments is to ensure that an entire copy of the archive remains in the archive. So a copy of the database will remain in the archive as well as one being moved to Tusla. That was one of the requests that were made of me.

“And the other amendment is to allow people who gave personal stories to the confidential committee, as part of the commission’s investigation, that they will have a period to indicate whether they want their names associated with their testimonies in the archive or whether they want their names redacted.

“So giving agency back to people, rather than making assumptions about what people want: actually ask them. For some people who, you know, don’t ever want to kind of the process of giving testimony was so difficult, they don’t want any association with what they said. For other people who want their stories and want their names very much associated with their own personal stories, it ensures that their names will be in the archive as well.”

Listen back in full here


Solicitor Simon McGarr (above) says the bill to seal Mother and Baby Home documents is impermissible under EU law

This afternoon.

Further to the progress through the Dáil today of a bill that would seal the records of the Mother Baby Home Commission for 30 years…

…solicitor and data privacy expert Simon McGarr writes (full article at link below):

‘It is critical that the state does not compound an administrative error being made by the Commission of Investigation into Mother and Baby Homes and Certain Related Matters, in failing to take account of its duties under the Charter of Fundamental Rights and GDPR to set aside any national provision which would conflict with the rights of access and other data protection rights.

The Commissions of Investigation Act 2004 has been superseded by the GDPR and the Data Protection Act of 2018. Its provisions providing for secrecy cannot be applied by any emanation of the state where they conflict with either Article 15 rights of access or Article 18 rights of the data subject to restrict any proposed processing.

In addition, the proposal to ‘seal’ the archive of documents to be presented to the Minister for 30 years is simply impermissible under EU law. Even where national legislation allows for restrictions on data subjects’ rights, those restrictions must be tightly limited and necessary for an overriding purpose of national importance…

…This is not merely a matter of policy – though the moral case is unanswerable.

It is a matter of EU law, and a direct duty on Ireland and all the emanations of the state to uphold those rights.

…It would be a perverse legacy for the government to legislate to deprive people of data they so sorely wish to access about themselves and open Ireland up to the risk of fines on foot of enforcement by the European Commission in order to do so.’

Mother and Baby Home Commission records: An EU Law Perspective (Simon McGarr, Tuppenceworth.ie)


This afternoon.

Earlier: “I’m Not Sure They’ll Quell Discontent”

Solicitor Simon McGarr

This afternoon.

The European Court of Justice yesterday ruled that Privacy Shield, the EU-US data protection agreement, is invalid.

The case was referred by  the Irish High Court after a 2015 complaint to the Data Protection Commissioner made by Austrian privacy activist Max Schrems.

Solicitor Simon McGarr, who represented Digital Rights Ireland in the early parts of Schrems case, writes:

The case resulted in a decision on two different legal mechanisms for sending personal data from the EU to the US – the EU-US Privacy Shield and the general-usage Standard Contractual Clauses.

Privacy Shield was always basically farcical and it’s an embarrassment that it was allowed to linger as long as it did.

But the Standard Contractual Clauses element of the case is where the long-term consequences are going to come into play.

Basically, now you can’t just sign a contract and have both sides promise to be good. Now, you have to look at the legal systems the parties live under to see if that contract can really be held to.

This is particularly significant for transfers of personal data to the US, which hasn’t followed the EU and a good chunk of the world in accepting that data protection is a human right, and whose hunger for mass-surveillance data from its tech companies was revealed by the Snowden revelations.

As the Irish DPC said after the ruling, utilising much of the nation’s store of understatement as they spoke, “it is clear that, in practice, the application of the SCCs transfer mechanism to transfers of personal data to the United States is now questionable.”

All of the bromides and reassurance statements coming from the US and the EU Commission during the day was the sound of losers, who had lost, not wanting to admit just how bad their loss was. [more at link below]

What is this Schrems judgment about? (Simon McGarr)

Yesterday: ‘This Is A Total Blow To The Irish DPC And Facebook’


Ministers Paschal Donohoe and Regina Doherty; Public Services Card; Section 263, sub section 3 of the Social Welfare and Consolidation Act of 2005

Yesterday, Minister for Employment and Social Protection Regina Doherty went on RTÉ’s Morning Ireland to defend the Government’s position on the Public Services Card, despite findings about the card made by the Data Protection Commissioner Helen Dixon.

During the interview, Ms Doherty repeatedly said the Social Welfare and Consolidation Act of 2005 has allowed the Government to do what it has done in respect of the card and she said that that is the legal advice she’s received from the Attorney General’s Office – advice she will not publish

Ms Doherty  said:

“Where we [the Government and the DPC] have a difference here is in the interpretation of the Social Welfare and Consolidation Act of 2005. My legal advice is incredibly strong, that we have a clear and unambiguous legal basis to do exactly what we intended to do from 2005 and what successive governments have done since…”

She also said:

In the 2005 legislation in sub section 3 of that legislation, it very, very clearly sets out exactly what the anticipated use was for, what the legal right and the responsibility of the data controller is and that’s exactly what we’ve done and so we really believe that we have a very, very strong legal basis to do exactly what we have done…”


This morning.

Ciannan Brennan, in The Irish Examiner, writes:

The minister referred to subsection three of that Act, and 23 words that the department and the DPC disagreed over.

Loose talk aside, there is only one section she could mean — subsection three of section 263 regarding a prospective Public Service Card.

Those words are: “A person shall produce his or her Public Service Card at the request of a specified body for the purposes of a transaction.”

That’s it. You’ll note that nowhere in that sentence are the words “mandatory” or “compulsory” to be found.

Put simply, there is no basis there for the blanket issuance of cards to citizens looking to access State services.”

Much more at stake than a little plastic card (Ciannan Brennan, The Irish Examiner)


Solicitor Simon McGarr has also tweeted his thoughts on the matter…

Yesterday: ‘It Would Be In The Circuit Court So It Probably Wouldn’t Be Very Expensive’


Then Minister for Public Expenditure and Reform Paschal Donohoe with a Public Services Card in 2006; Solicitor Simon McCarr

Solicitor Simon McGarr, of Dublin firm McGarr Solicitors, was very vocal about his concerns in respect of the Public Services Card for years.

This was long before the Data Protection Commissioner Helen Dixon last week found that there is no legal basis for anyone to have to present a PSC in respect of any transaction between a person and a public body outside the Department of Employment and Social Protection.

At the weekend, Mr McGarr tweeted redacted documents that he obtained which show how closely the Department of Social Welfare was following his media utterances on the matter – including his tweets…

Related: The Facial Images on the PSC are Biometric Data (Simon McGarr)

Previously: House of Card

Your Card Has Been Declined


Gavan Reilly, political correspondent at Virgin Media One and presenter of Newstalk’s On The Record interviewed Mr McGarr yesterday.

Towards the end of the interview, they had this exchange…

Gavan Reilly: “If there is an internal note on the Department of Social Protection about your appearance on this show here today, what do you imagine they’re saying about you?”

Simon McGarr: “I can’t imagine it’s complimentary based on the previous notes that I got. But what I will say is this: One of the talking points which have emerged since the report [from the Data Protection Commissioner] is the argument is that ‘well, look, surely everyone acknowledges, our intentions were good while we illegally collected a database on three million people.

“And, at some point, the intentions were good, absolutely. In the sense that nobody intended to break the law, at some point when this was being designed.

“The question is at what point did they become aware that the law was being broken and being carried on anyway.

“And I do know that the Journal.ie received documents between the Department of Transport and the Road Safety Authority which said that Shane Ross had received a verbal briefing from the Attorney General in March 2018.”

Reilly: “So the Attorney General was giving advice, nearly 18 months ago, that there already some legal concern or ambiguity about this?”

McGarr: “Well, on foot of the conversation, having cited the conversation as the reason for doing it, the Department of Transport instructed the Road Safety Authority  to stop requiring the public to use the Public Services Card in their online application.

“And the Road Safety Authority complained that they’d spent millions building that. So, in March 2018, Shane Ross took the right decision on the Attorney General’s advice and he said ‘no, we won’t do that’.

“Now, the question is: at what point did everybody else in the public service become aware of the Attorney General’s opinion and why did they take no action from March 2018 to now?”

Listen back in full here


Broadcasting Authority of Ireland, from its proposal to regulate social media across Europe; solicitor Simon McGarr


Samantha McCaughren, in the Sunday Independent, reported that the Government is considering proposals from the Broadcasting Authority of Ireland that it be given the power to regulate content on social media platforms such as Facebook, Twitter and YouTube in Ireland and across Europe.

Solicitor and director at Data Compliance Europe Simon McGarr spoke to RTÉ’s Morning Ireland about the proposal this morning and said he didn’t think BAI should be given those powers.

He said:

“I think that the proposal that they’ve [BAI] made today, and they’re publishing later this morning, is basically 98 pages intended to make that argument that they are [right group for the job] but demonstrating throughout exactly why they should not be the body to do that.”

“I think perhaps the best example would be to think of whether or not we thought that the 1950 Censorship Board of Ireland would be the correct body to be put in charge of a modern censorship organisation or a classification organisation.

“The argument that would be made is: ‘well, we have the most experience censoring things and therefore we should be put in charge of all these other censoring activities’.

“It’s precisely because of its institutional history, not because of the people on the board but because of the legislation that was created by the Broadcasting Act of 2009.

“While the institution of the BAI doesn’t have the right instincts, institutional instincts and experience for regulating a completely different form of communication because what has happened here in this body’s proposal is that they have taken the concept of regulating broadcast and applied it in certain areas to regulating areas between individuals.

“So we are now looking at a proposal for example in this, that they would be able to take down private messages, including encrypted messages, sent by things such as WhatsApp or IM message between individuals and they’d be able to censor those messages.”

He added:

“For example, we don’t open all the envelopes in An Post to check whether or not we think that the content is acceptable and deliver on the basis of somebody censoring that information.”

The interview can be listened to in full in the Soundcloud link above or here

Mr McGarr has also written a blog post about the matter here

Why the BAI is not the body to regulate the internet (Simon McGarr, Tuppenceworth.ie)

Paschal Donohoe, the then Minister for Public Expenditure and Reform, launching the Public Services Card (PSC) in 2016

This afternoon.

Solicitor Simon McGarr has again claimed the Department of Social Welfare collects and processes biometric facial recognition data, contrary to the department’s assertion that it doesn’t.

Mr McGarr supports his claim with the following…


90319957On Wednesday Labour Minister Brendan Howlin suddenly withdrew changes to the Freedom of Information Bill that would have substantially increased the cost of obtaining information from public bodies.

Dublin solicitor and FOI activist Simon McGarr attended the Select Sub-Committee on Public Expenditure and Reform committee meeting on the same day, where Mr Howlin attempted to explain his FOI strategy.

On his blog, Mr McGarr writes:

Maybe it was the lateness of the hour or maybe it was just the effect of a couple of days of unexpected trouble but minister Brendan Howlin on Wednesday told us why he wants to charge €15 in respect of FOI requests.

The Minister was on his second day in Committee. The session had started with him announcing that he wanted to withdraw his controversial amendment to Section 12, multiplying Ireland’s FOI Fees.

He wasn’t abandoning his plans, he had just lost confidence overnight in his amendment’s wording. He confirmed his plan to bring back the fee hike later.

Despite this temporary retreat, he still faced questions. [Independent TD] Stephen Donnelly asked him how much money the Government expected it was going to cost to collect those fees – and whether the Government had estimated how much money they would raise.

Like the Hatter flanked by the Dormouse and the March Hare, the minister sat between his civil servants, who murmured words in his ear.

The Minister explained that his department couldn’t actually manage to make any estimate.

Donnelly pointed out that, without estimates, the Minister had no idea if the fees he was intending to levy would actually contribute anything to the state.

The Minister couldn’t deny it, having already said his department – which is involved in preparing the national budget – couldn’t give any estimate

In fact, it is quite possible that the fees might cost us extra. That we would actually spend money to collect less money.

It was then that the Minister told us that what mattered wasn’t whether the fee made money. It was that he didn’t want people getting something without paying for it. “In the current climate. ”

The State couldn’t have a situation where people could just get access to their information for nothing- as if it was a right!

Citizens had to make a contribution. Not a contribution to the costs, because who knows if the admin will eat it all.

Asked again about those fees, the Minister was worn out. Rubbing his eyes, perhaps wishing that-like [Lewis] Carroll’s Dormouse- he could just curl up and doze, he tried to make it clear to the rest of us:

He mostly needed to charge a fee to pay for the expense of charging a fee.

As an observer to the committee, this was a revelation.

I don’t know what the European Court of Justice would think of this.

I don’t know what the European Court of Human Rights would think of this.

I don’t know what the United Nations would think of this.

But I know what I thought of it.

I thought it was a polished, softly spoken outburst of irrationality.

I thought it was mad.

Lewis Carroll’s Freedom of Information Bill 2013 (Simon McGarr, McGarr Solicitors)

Previously: FOI It’s Worth

(Sam Boal/Photocall Ireland)

At today’s Irish Digital Forum at The Science Gallery were from top: Sean Sherlock (junior minister for jobs and innovation), Simon McGarr (solicitor, Stop Sopa Ireland Campaign), Tom Murphy (Boards.ie) and Paul Durrant (Internet Service Providers’ Association of Ireland).

Sean Sherlock: “If you look at question 86 of the Copyright Review Committee, it says ‘have we missed anything?’, is the question. ‘What have we missed?’ That opens up a space for anybody to make a submission on anything relating to issues not covered by the questions. It doesn’t matter that you don’t have a technical knowledge around the questions because not everybody does, including myself if I’m honest about it. People may laugh but I, you know, not everyone is going to have a complete deep knowledge about the 86 questions that apply here.”

Simon McGarr: “But that’s exactly what you’ve suggested people do if they want to express their opinion. That they plough through those 86 questions. You haven’t done them yourself?

Sherlock: “No, I, I, I have.

McGarr: “Have you answered them?

Sherlock: “No, no, I have looked at the questions..

McGarr: “Can we see? Can we correct them?

Sherlock: “You see, I think, I don’t mind people being facetious, you know, you can be facetious if you want to be Simon, OK?”

McGarr: “I’m always facetious.”

Sherlock: “Well it doesn’t become you, right? And let’s…”

McGarr: “No that is a real question because minister that’s the question that you responded to people with when you, when after you signed this SI [Statutory Instrument]. You said that people should go now and participate…”

Sherlock: “I think you should tone it down. I think you should tone it down.”

McGarr: “People should participate…”

Sherlock: “I think you should tone it down.”

McGarr [to Tom Murphy]: “Do you? Do you think I should tone it down?”

Murphy: “Yes I think you should tone it down.”

McGarr: “OK, right, I’m too loud. Apologies.”

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