Appendix 1 - Example of an Index and a Register
An Index usually states the name, place and date of the event, whereas a register contains more information such as, in the case of a death register, the occupation of the deceased and cause of death.
Appendix 2 - Letter notifying the GRO of the Ombudsman’s investigation
29 October 2009
Mr. Kieran Feely
General Register Office
Refusal of Access to Registers of Deaths, Births and Marriages
Dear Mr. Feely,
The Ombudsman has decided to conduct an investigation of the practice within the General Register Office (GRO) of refusing direct access to entries contained in the registers of deaths, births and marriages.
You will be aware from earlier correspondence from this Office of a complaint made by Mr. Andrew Johnson arising from the refusal of his request to be given access to certain historical or archival death registers. Mr. Johnson had sought access to the death registers for the district of a town in Co. Westmeath for the period 1864-1900; he required access for the purposes of a local history project in which he is involved. Mr. Johnson's request was refused at local HSE level and this refusal was upheld by yourself when the matter was raised with you by this Office in the course of dealing with Mr. Johnson 's complaint. Following a series of exchanges with you, in the course of which we understand you received legal advice, you took the view that under current legislation there is only a limited right of access to the registers of deaths, births and marriages. You explained that, in your view, this access is by way of identifying a register entry of interest in the register indexes and then seeking a copy of that particular entry. You expressed the view "that it was not intended by the Oireachtas that there be unrestricted access to registration records" and that it was not possible for your Office "to accede to Mr. Johnson's request".
It is clear that the position outlined by you in response to the Johnson complaint (dealing specifically with the death registers) applies equally to the registers of births and of marriages. In these circumstances, and where investigating the Johnson complaint would allow her to deal only with the issue of access to the death registers, the Ombudsman has decided that any investigation by her in this area should encompass the registers of births, deaths and marriages. Accordingly, the Ombudsman has decided to undertake an "own initiative" investigation of the practice of the GRO in refusing direct access to the registers; the investigation will focus in particular on the question of access to registers which may be regarded as historical or archival and where access is sought for research purposes. This investigation, while prompted by the Johnson complaint, is being conducted under section 4(3)(b) of the Ombudsman Act 1980. This provision allows for an Ombudsman investigation of an "action", in the absence of a specific complainant, where "it appears to [her], having regard to all the circumstances, that an investigation under this section into the action would be warranted". The "action" in this case is the GRO practice of refusing direct access to register entries where such access is sought by researchers. In considering the circumstances which warrant undertaking this "own initiative" investigation, the Ombudsman considered, amongst other things:
- the fact that the GRO practice is hindering access generally to important social and historical documents; and
- the fact that conducting an investigation of the Johnson complaint by itself would represent a poor use of the resources both of her own Office and of GRO resources in responding to the investigation.
The Ombudsman is satisfied from her preliminary examination of the individual complaint that a person concerned has been adversely affected and that the action complained of may have been taken on the basis of one or more of the grounds identified at section 4(2)(b) of the Ombudsman Act 1980 (copy of provision attached).
Amongst the matters to be considered in this investigation will be:
- whether there is a positive legal prohibition on granting access to the registers in the manner sought, for example, by Mr. Johnson;
- whether access to the registers is already provided for in law; and
- whether the law is silent on the question of access and whether, in this event, there is room for the exercise of discretion in the case of access requests.
This is not intended to be a comprehensive statement of the matters to be addressed as, in the course of the investigation, other issues may emerge as being of relevance to the validity or appropriateness of the GRO action under scrutiny.
Given the subject matter of the investigation, and the fact that the action would appear to adversely affect a wide range of researchers across a range of disciplines, the Ombudsman may invite relevant professional or interest groups to make submissions to her on the matter. In the event of the Ombudsman taking this course, and should she intend to rely on any views or information put forward by any such body, the GRO will have an opportunity to become aware of this and to make any reply it wishes.
The process of investigation in this instance will be broadly the same as has applied in previous investigations involving your Office. Firstly, you are invited to make a written response to this notification of investigation. If you wish, you may opt to rely on responses already made in the Johnson case; or you may rely on the Johnson replies along with additional material; or you may opt to make an entirely new response on the matter. Secondly, you are invited to provide copies of any material which, in your view, is pertinent to the matters under investigation. The Ombudsman understands you have received legal advice of relevance and you are invited to provide either a copy of that advice or, should you prefer, a summary or other outline of the advice. As you know, for the purposes of this investigation the Ombudsman cannot give any credence to a submission, purporting to be based on legal advice, where the content of that advice has not been disclosed. Finally, it is unclear at this stage as to whether or not it will be necessary to interview you for the purposes of the investigation. However, if you feel such an interview would facilitate the GRO in representing its position on the issues arising, we will be happy to arrange a meeting with you.
Any submission the GRO wishes to make, and any relevant material it wishes to provide to the Ombudsman, should reach this Office by 23 of November 2009, at the latest.
In the event that the investigation is likely to result in any "finding or criticism adverse" to the GRO the Ombudsman will, as required by section 6(6) of the Ombudsman Act 1980, provide the GRO with "an opportunity to consider the finding or criticism and to make representations in relation to it to [her]."
This investigation is being managed in this Office by Derek Charles, Investigator (Tel. 01-6395627) and you are welcome to contact him if there is any aspect of the investigation on which you would like further information.
Appendix 3 - Organisations invited by the Ombudsman to make submissions
- Association of Professional Genealogists in Ireland
- Council of Irish Genealogical Organisations
- Irish Committee of Historical Sciences
- Irish Historical Society
- Irish Manuscripts Commission
- Irish Society for Archives
- Local Authority Archives Group
- Royal Irish Academy Committee for the Historical Sciences
- Society of Archivists Ireland
- Ulster Historical Society
Appendix 4 - Response from the GRO to the Ombudsman’s draft investigation report
13 March 2012
Re: Investigation of access to historical records of births, deaths and marriages
Dear Mr Nutley
I refer to your letter dated 13 February 2012 concerning the above.
Firstly, let me say that I am glad the Ombudsman has found no evidence of maladministration with regard to the manner in which the GRO applies section 61 of the Civil Registration Act 2004.
I would like to comment briefly on some of the operational matters raised in your public consultation. I do acknowledge that the present system of access to records is not satisfactory from the point of view of professional genealogists and historians. The position with regard to the Research Room in the Irish Life Centre, Lower Abbey Street, Dublin 1 is that the facility is subject to peaks in demand when television programmes containing genealogical themes are aired. The facility is purpose-built and was first opened to the public in 2007 and represents a considerable investment on the part of the State. The facility is a vast improvement on what preceded it, and is located in an area of the city that is easily accessed by public transport. The capacity of the facility is for 40 members of the public. While this capacity is adequate most of the time, it has had to be closed to additional entrants on approximately 12 occasions in the past 12 months. The reasons for these closures are excess demand or a lack of staff owing to sick leave. These closures have been for short durations and have not exceeded one hour and fifteen minutes on any occasion.
The restriction on receiving five photocopies per day per person has been in place for some time. The rationale for this restriction is to give all members of the public reasonable access to copies on the day of their visit. Any photocopies in excess of five are posted to applicants within a reasonable period. Currently, the expected delivery lead-time is two days. It would be preferable if all requests could be filled in total on the day of the visit. However, some visitors request well in excess of five copies and the facility does not have the staff resources required to fill all orders on the day. It is considered that this is the fairest way to allocate scarce resources.
The position in relation to fees for searches and copies of register entries is that fees are set under the Civil Registration Act by way of statutory instrument and the GRO has no discretion in this matter.
In relation to the commentary on the National Archives Act 1986 in the report it must be pointed out that the Ombudsman is not the legal adviser to the General Register Office and is not empowered to provide an interpretation of the law to the GRO. The GRO as a State service is advised on all matters of law and legal opinion by the Attorney General and will be guided in all legal matters by the Attorney and her staff.
The position in relation to the National Archives Act 1986 is that the registers referred to in the Ombudsman’s report are in daily use and their transfer to the National Archives would seriously interfere with the administration of the GRO. I would also point out that section 12(2) of the Civil Registration Act 2004 provides that the registers and indexes maintained by me under that Act are to be kept in the GRO, or in such other place as I may direct with the approval of the Minister. As for making the records available to the public, as I have stated previously, I am advised that the only manner in which the records can be made available to the public by me is in accordance with section 61 of the Civil Registration Act 2004. Consequently, I do not believe that I have any power or authority to make these records available in any other manner, or under any other legislation. In any event, as is the case with the National Archives, the GRO does not have the facilities or resources to make the registers available to the public. There are also concerns that unfettered access to records could lead to abuses, including identity theft.
It is important to note that all births and deaths registers prior to 2005, and marriage registers prior to 2008 are in manual, handwritten format. Significant conservation issues arise in any consideration of how these records may be made available publicly.
National policy in relation to genealogy is the responsibility of the Department of Arts, Heritage & Gaeltacht and it is my understanding that that department intends to establish a working group comprising representatives from AHG, National Library, National Archives and GRO to examine policy options for genealogy and to make recommendations. While I would not wish to pre-empt the work of the group, it is to be hoped that the issues raised in the Ombudsman’s report are given due consideration.
During preparation of the Civil Registration Act 2004 a consultation was held with the Data Protection Commissioner. At the consultation, the Data Protection Commissioner expressed strong reservations about granting third party access to any and all records. I would suggest that the views of the Data Protection Commissioner be sought on the Ombudsman’s report.
Appendix 5 - Extract from the legal advice received by the Ombudsman regarding public inspection of GRO records under the National Archives Act 1986
NATIONAL ARCHIVES ACT, 1986
The second element of Querist’s query asks whether there is a public right of inspection of GRO registers under the National Archives Act 1986 notwithstanding Section 61 of the Civil Registration Act 2004. The 1986 Act establishes the National Archives, provides for the transfer of Departmental records more than 30 years old to the National Archives and for their preservation and, crucially, for a right of public inspection of such records. There are various qualifications to and exemptions from these provisions including provisions allowing for the withholding of records on public interest grounds which are not immediately relevant for the current query. The key question therefore, is whether historical records kept by the GRO fall within the scope of the 1986 Act and, if so, whether they are subject to the general rule of disclosure or caught by an exemption to that Act. Interestingly, I note that during the course of the Dáil debates on the introduction of the Civil Registration Act 1986 reference was made to the possibility of the legislation including a reference to “historical records” (i.e. more than 70 years old) which could then be transferred to the National Archives to facilitate localised searches for research purposes (see Note 1 below).
The general policy of the 1986 Act favouring disclosure is to be found in Section 10(1) which provides as follows:-
“All archives in the custody of National Archives or held elsewhere in accordance with this Act shall, subject to such regulations as the Taoiseach may from time to time make, be available for public inspection, except –
(a) Archives which were formerly Departmental records (other than court or testamentary documents) and are less than 30 years old.
(b) Archives which were formerly Departmental records and in respect of which a certificate has been granted in accordance with Section 8(4)”.
As a matter of fact GRO records are not kept in the National Archives although the general policy of the 1986 Act is that Departmental records more than 30 years old should be transferred to the National Archive. This is provided for under Section 8(1) which states:-
“Departmental records which are more than 30 years old and in relation to which a certificate granted under this Section is not in force shall, subject to Section 7 be transferred by the Department of State in which they were made (or, if they are held in another such Department, by that other Department) to the National Archives where they shall be made available for inspection by the public.”
It is interesting to note that both Section 8(1) and Section 10(1) provide for public inspection. The key difference between the two, as regards public inspection, is that Section 8(1) covers only records which have been transferred to the National Archives (unless they were otherwise exempt from inspection) whereas Section 10(1) covers both records in the custody of the National Archive and archives “held elsewhere in accordance with this Act”. Clearly it is not necessary for a record to be in the custody of the National Archive for it to be an “archive” within the meaning of the Act.
The reason GRO records are not kept by the National Archive is that at some time in 1992 the Taoiseach made a direction under Section 8(8). This sub-section provides as follows:-
“(8) The Taoiseach may, with the agreement of the Director, direct that the transfer to the National Archives under this section of any class or group of Departmental records be not proceeded with unless he is satisfied that the arrangements for such transfer are adequate.”
The text of the direction apparently issued by the Taoiseach in the summer of 1992 is not available but the terms of Section 8(8) itself make two things clear. The first is that the direction relates to records which are prima facie transferable to the National Archives under Section 8(1) and were it not for the direction they would have to be so transferred. The second is the only reason they are not being transferred is that the Taoiseach was not yet satisfied that the arrangements for transfer were adequate. This distinguishes a direction under Section 8(8) from, for example, a certificate under Section 8(2) which allows a Department withhold records from transfer which are in regular use and required for the administration of that Department or under Section 8(4) which allows a Department to certify in relation to transferred records that they should not be made available for public inspection on various public interest grounds. A decision underlying either of these certificates will be based on policy considerations arising from the content or nature of the record itself. A direction under Section 8(8) on the other hand will be based on the purely pragmatic consideration of the adequacy of the arrangements for transfer rather than on any consideration of the nature and content of the records (unless perhaps the physical nature of the records is such that they require special treatment that is not available in the National Archives).
It is also interesting to note that it is clear from Section 10(1)sub paragraphs (a) and (b) that in principle once Departmental records are transferred to the National Archives then they cease to be Departmental records, hence the phrase “archives which were formerly Departmental records” used in both sub-paragraphs. This is potentially significant as Section 10(1)(b) expressly excludes from public inspection archives which were formerly Departmental records and in respect of which a certificate has been granted in accordance with Section 8(4). No equivalent exception from the general principle of public inspection is made in respect of archives which have not been transferred to the National Archive by reason of a certificate under Section 8(2) or a direction under Section 8(8). This can be read in either of two ways. Either there is no right of public inspection under the 1986 Act in respect of archive documents retained by a Department for its own on-going use and equally no right to inspect archive documents which have not been transferred under Section 8(8) or alternately there is a right to inspect both.
The issue narrows down to the question of whether GRO records are archives within the meaning of the 1986 Act and, if so, whether they are “held elsewhere in accordance with the Act”. Archive is defined in Section 1(1) as having the meaning ascribed to it by Section 2(1) which is as follows:-
“For the purposes of this Act “archives” includes –
(a) Such records and documents (and copies of them) as are, at the commencement of this Act, held in the public record office of the State or the State paper office.
(b) Departmental records transferred to and accepted for preservation by the National Archives under this Act.
(c) Other records or documents (and copies of them) acquired permanently or on loan by the National Archives from public service organisations, institutions or private individuals.
(d) All public records held at the commencement of this Section elsewhere than in the public record office of Ireland under an Act repealed by this Act.”
The definition of “archives” is, as has been noted, somewhat open-ended. It is a definition which states that the term “includes” four categories of records but which by implication suggests that other categories of records which do not fall within the four paragraphs may also be included. However, some care needs to be taken with this approach as, if a record is closely related to but clearly falls outside the scope of any of the four sub-paragraphs, it would deprive those paragraphs of their meaning and effect to nonetheless classify such a record as an archive. In addition the fact that the records in issue would be understood by lay people as “archives” in the normal sense is largely irrelevant as the 1986 Act clearly utilises a specialised definition of the word so as to exclude a range of archive material which is not intended to come within its scope. Most particularly the 1986 Act is directed towards public records and the records of public bodies of various kinds and is not intended to capture purely private records (unless donated to the National Archives) no matter how historically interesting they may be.
However, the GRO registers do generally speaking come within the type of public records with which the 1986 Act is concerned. There is a definition of Departmental record under Section 2(2). This definition lists a number of types of record including various paper and electronic records and goes on to provide:
“…made or received, and held in the course of its business, by a Department of State within the meaning of Section 1(2) or anybody which is a committee, commission or tribunal of inquiry appointed from time to time by the Government, a member of the Government or the Attorney General, and includes copies of any such records duly made but does not include:-
(i) Grants, deeds or other instruments relating to property for the time being vested in the State, and
(ii) Any part of the permanent collection of a library, museum or gallery.”
Department of State is not in fact defined in Section 1(2). Instead, that sub-section defines a “scheduled body” to mean a body, institution, office commission or a committee referred to in the Schedule of the Act and goes on to say that references to a “Department of State” include, where appropriate, references to a scheduled body and the definition of “Departmental records” in Section 2(2) is to be construed accordingly. The Schedule for the purposes of Section 1(2) includes in the listed bodies the General Register Office. Thus there is no doubt but that GRO records are Departmental records within the meaning of Section 1(2) and Section 2(2). They do not however readily fall within the definition of “archives” under Section 2(1) and in particular Section 2(1)(b) as they have not been “transferred to and accepted for preservation by the National Archives under this Act”.
However, under Section 10(1) the right of public inspection is not limited to archives which have been transferred to the National Archives but also includes archives which are held elsewhere in accordance with the Act. I have noted that under Section 10(1) Departmental records, once transferred to the National Archives cease to be Departmental records and become archives. Unfortunately, it is not entirely clear whether it can be said that Departmental records which are not transferred to the National Archive by reason of a direction under Section 8(8) also become archives notwithstanding the fact that they remain in the custody of the relevant Department and not in the custody of the National Archives. The argument is circular either way. Either the records are archives because they would, were it not for the Taoiseach’s direction, fall to be transferred to the National Archives under Section 8(1). Consequently, it is strongly arguable that such records do not either fail to become or cease to be archives by reason only of the inadequacy of the arrangements for their transfer. Thus they are archives which are “held elsewhere in accordance with” the 1986 Act as they continue to be held by the GRO on foot of the direction issued under Section 8(8).
The contrary argument is that the action which changes Departmental records into archives within the meaning of the 1986 Act is the act of transfer to the National Archives. Consequently references to “held elsewhere in accordance with this Act” refers not to a failure to transfer for whatever reason but the actual positive holding elsewhere of the records for another purpose. However, I don’t see any clear basis in the 1986 Act for the “holding elsewhere” of historical records other than the failure to transfer them to the National Archives for one of the various reasons available under Section 8 or their retention and disposal under Section 7. Section 7 provides that Departmental records retained by a Department cannot be disposed of save in accordance with a direction issued by the Director of the National Archives. Section 7 itself does not seem to provide any basis upon which records can be retained by a Department suggesting that the only grounds upon which Departmental records may not be transferred to the National Archives remains those identified in Section 8. Section 19 does permit the making of regulations by the Minister to cover the transfer of records to the National Archives and the disposal of records which are not so transferred but the section does not make specific reference to regulation of the retention of records, although this might be argued to be a component part of “the transfer of records”. (See Note 2 below.)
Given that Section 10(1) clearly envisages that there may be archives held elsewhere than in the National Archives I think it can be legitimately contended that records which have not been transferred by reason only of a direction under Section 8(8) nonetheless fall within the definition of archives for the purposes of the 1986 Act as being archives held elsewhere in accordance with the Act. Consequently, the general right of public inspection under Section 10(1) but not the specific right to inspect archives in the National Archives under Section 8(1) applies to such documents. The records are of course Departmental records and this is an important point to note since the principles of the Act relating to public inspection apply to public documents of various kinds and exclude private documents which might nonetheless be colloquially understood as “archives”.
...the 1986 Act does support the proposition that there is nonetheless a public right of access to records contained in both registers and indexes which are more than 30 years old since they are capable of definition as “archives” and by reason of their having been withheld from transfer to the National Archives pursuant to a direction under Section 8(8) they are “held elsewhere in accordance with” the 1986 Act.
2nd June 2011
NUALA BUTLER S.C.
See Mr Neville 28th January 2004. A number of speakers mentioned the Genealogical Society of Ireland which seems to have made submissions to various deputies on the 2004 Act with a view to securing this change. This suggests that the research problem is actually fairly widespread and perhaps also that the Society had been advised that legislative change would be necessary.
Note that in any event the electronic index to the statutes does not identify any regulations as having been made under Section 19 so the only relevant provisions would appear to be those of Sections 7 and 8 themselves.