While the Ombudsman was satisfied that there was no evidence of maladministration with regard to the manner in which the GRO is applying section 61 of the Civil Registration Act 2004, the GRO was given an opportunity to comment on a draft of the Ombudsman’s investigation report. In particular, the GRO’s comments were sought on the view that birth, death and marriage records over 30 years old should be available for public inspection under the National Archives Act 1986.
The Registrar General of the GRO responded in a letter dated 13 March 2012 (see appendix 4).
The Registrar General made the following comments:
- He acknowledged that the present system of access to records is not satisfactory from the point of view of professional genealogists and historians. He said that the GRO has no discretion in relation to the fees for searches and copies of register entries, which are set by legislation.
- In relation to the National Archives Act 1986, the Registrar General said that the GRO will be guided in legal matters by the Attorney General and her staff. He said he had been advised that the only manner in which the records can be made available is through section 61 of the Civil Registration Act 2004. He said he did not have the power or authority to make the records available under any other legislation.
- The Registrar General added that, in any event, the GRO does not have the facilities or resources to make the registers available to the public.
- He said that the registers referred to in the report are in daily use and their transfer to the National Archives would seriously interfere with the administration of the GRO.
- The Registrar General also stated that section 12(2) of the Civil Registration Act 2004 provides that the registers and indexes maintained by him are to be kept in the GRO or in such a place as he may direct with the approval of the Minister.
- He expressed concerns that “unfettered access” to the records could lead to abuses, including identity theft and also referred to reservations he said the Data Protection Commissioner had expressed in the lead up to the Civil Registration Act 2004 regarding third party access to such records.
The Ombudsman’s comments on the response from the GRO
The Registrar General's assertion that he can make the records available only through the Civil Registration Act 2004 appears to be an indirect rejection of the Ombudsman’s view, as set out in Chapter 3, that the GRO records, which are more than 30 years old, are available for inspection under the National Archives Act 1986. Whatever the access regime under the 2004 Act, it does not displace the provisions of the 1986 Act.
The Ombudsman notes that it is open to the Registrar General to issue a certificate under section 8(2) of the National Archives Act 1986 to withhold the transfer of the records to the National Archives if the records are in regular use and their transfer would seriously interfere with the administration of the General Register Office. However, to date, no such certificate has been issued. In any event, for the reasons set out in the legal advice received by the Ombudsman (see Appendix 5), it is not necessary for the records to be transferred to the National Archives for the records to be available for public inspection.
The Registrar General also made reference to section 12(2) of the Civil Registration Act 2004. Section 12(2) provides that “Registers and indexes maintained by [the Registrar General]shall be kept in the [GRO] or in such other place as [the Registrar General]may direct with the approval of the Minister”. Section 12(2) is concerned with the location of the records, not any right of access or otherwise. The records come within the scope of the National Archives Act 1986 once they are more than 30 years old. The provisions of the 1986 Act, including the right of public inspection under section 10, apply wherever the records are physically located.
The GRO also referred to possible abuse, such as identity theft, of life event records. Carrying out identity theft can involve an individual identifying a death certificate for an individual born around the same year as the would-be thief. The deceased’s birth certificate can then be retrieved and used to assist the identity theft.
The present position is that any member of the public can receive a copy of a birth or death certificate from the GRO on payment of a fee. There is no requirement that the individual be connected to, or have the approval of, the individual(s) mentioned in the record. No form of identification is necessary to receive access and all that is required is the date of the event and the name of the individual as stated in the certificate. In the circumstances, it would be surprising if some abuse of such access has not already occurred. Nonetheless, the Ombudsman accepts that public inspection of records as recent as 30 years old may make it easier for an individual or individuals to use that right of inspection for an inappropriate purpose. However, the Ombudsman considers that any risk of abuse by a few is outweighed by the benefits arising from providing greater access to many legitimate researchers, historians and others. Furthermore, birth and death notices in newspapers also provide a source of similar information which may be abused by those determined to do so and no one is suggesting that restrictions be placed on newspapers in relation to such notices. In the circumstances the Ombudsman expects that mechanisms can be put in place to minimise or eliminate the risk of abuse of access to the records of life events.
The Registrar General also referred to data protection concerns that may arise from granting wider access but did not specify what those concerns are. The Ombudsman notes that any right of public inspection would have to be consistent with all of the State's legal obligations. It is important to recall that the issue is one of access to historical and archival records. In relation to any data protection concerns, the Data Protection Act does not apply to information relating to the deceased, so any concern that might exist would not arise from wider access to records of deaths, or records of births and marriages of those that are deceased.
In his response the Registrar General referred to his understanding that the Department of Arts, Heritage and the Gaeltacht intended to establish a working group comprising of representatives from the Department, the National Library, the National Archives and the GRO, to examine policy options for genealogy and make recommendations.
Under the Programme for Government the Department of Arts, Heritage and the Gaeltacht is committed to exploring “philanthropic opportunities for the development of a national archives and genealogy quarter, providing easy access to archives and tapping into an area of cultural tourism which is of huge interest to the vast Irish Diaspora”. It is also committed to reviewing the National Archives Act 1986.
The Ombudsman contacted the Department to discuss her investigation, and the Department’s policy on genealogy and life event records in general. The Department acknowledged the historical and cultural importance of the registers held by the GRO and said that, separately, it had been engaging with the GRO with a view to making the records more accessible, including in electronic format. The Department indicated a high level of interest in the Ombudsman’s investigation and her preliminary findings, and a desire to be involved in any initiative that may increase the accessibility of such records. It also indicated that in line with its aims under the Programme for Government, it was willing to play a central role in such an initiative.
As mentioned in the introduction to this report the general move across many State bodies is to ‘open up’ access to historical records. The 1901 and 1911 censuses are now published online, and the Department of Arts, Heritage and the Gaeltacht is committed to publishing the 1926 census. A number of State bodies are promoting The Gathering event in 2013, which Fáilte Ireland says will be Irelands’ biggest tourism programme ever”, and involves inviting the Irish Diaspora to visit Ireland and trace their roots. The restriction on access to the registers held by the GRO is at odds with this wider move towards increased access.