The Dail [Irish parliament] has passed legislation to protect the privacy of Irish citizens. An unintended consequence, is to sometimes set limits to tracing exempt records: military records, but also records relating to children raised in care.

Many researchers who are genuinely trying to trace their own family history have reported great difficulty in getting access to records they are legally entitled to see. Despite greater awareness and sensitivity  to the fact that personal identity is a human right, some archivists and institutions still act as ‘gate-keepers’.

If you find yourself in this circumstance, it’s important to know the legislation, and how to use it to gain access to records you’re legally entitled to see.

There are two main pieces of legislation: the Freedom of Information Act (2014); and the Data Protection Act (1998).

In 2011 a case-ruling by the Supreme Court, placed significant restrictions on an earlier Freedom of Information Act (1997).

The case before the Supreme Court was taken by the family of an elderly man, deceased by the time the case came to court. This gentleman had wanted to trace his mother’s medical records in the Rotunda Hospital, so as to be able to know with certainty, who his mother was. She had a very common name, and he hoped that medical records would include her date of birth, by which he could pick out his mother from her doppelgängers.

The Information Commissioner and the High Court had previously found in this gentleman’s favour, but on each occasion the Rotunda Hospital appealed the decision.

In 2011 the Supreme Court of Ireland found:

The circumstances in which the information was originally given, determine whether the information can be accessed under FoI, or should remain protected

This gentleman’s family were devastated they were not allowed to access the relevant medical records and follow through on their late father’s wish.

The 2011 ruling is very subjective – it allows the institution holding the records to make the judgement call on access.

Despite a new Freedom of Information Act in 2014, the post-Rotunda legal position means that certain records are still exempt.

This situation has to change, and there are increasing calls to change Irish laws, so that all children raised in care and/or adopted have a right to access their records.

In the meantime, your best chance to access records, is by applying through the Data Protection Act.

Quite simply Data Protection does not apply to dead people.

You will have to provide proof of kinship to show you are genuine.

This can be onerous for a married woman tracing back two or more generations. You may need to provide a mini-pedigree supported by civil birth and marriage records, to show descent through the maternal line.

Ultimately, people follow through when it matters to them.