Preservation of privately-held records

Part 3 of the Maternity Protection, Employment Equality and Preservation of Certain Records Act 2024 provides for the preservation of privately-held administrative and other records that relate to Magdalen Laundries, Mother and Baby and County Home Institutions, industrial schools, orphanages, adoption agencies and boarding out arrangements, as well as the bodies that ran or oversaw these institutions and placement arrangements.

It does this by placing an obligation on any private holder of a relevant record to preserve it, making it an offence to destroy, mutilate, falsify, or fail to maintain relevant records, or to export them from the State.

A full copy of the Act is available here.

The legislation applies to any person or body that is in possession of a relevant record. These people or bodies are known as “information sources”.

The only exclusions provided for are:

• survivors, affected persons and their families who hold records relating to themselves and their own institutional experiences; and

• records held by a public body.

The term “relevant record” is used to describe the records covered by the legislation. It is a very broad definition that comprises records relating to an “institution” or a “relevant body” at any period up to 31 December 1998.

“Institution” is defined to include Mother and Baby and County Home institutions, Magdalen Laundries, orphanages, industrial schools, reformatories and related institutions. The majority of these definitions further refer to Schedules in existing legislation, namely the Mother and Baby Institutions Payment Scheme Act 2023, the Redress for Women Resident in Certain Institutions Act 2015 and the Residential Institutions Redress Act 2002.

“Relevant body” includes bodies who ran or oversaw institutions, and bodies and persons who were involved in placing people into an institution, for adoption, into a boarded out or similar arrangement or with persons who assumed the role of parents (in the case of incorrect or illegal birth registration).

It includes, but is not limited to, records relating to:

• a person who was resident in an institution, was adopted, was the subject of a boarded out or similar arrangement or an incorrect birth registration;

• the establishment and management of an institution or relevant body;

• its finances, accounts and commercial activities;

• its administration, regulatory compliance activities and governance matters;

• its buildings and grounds;

• burials carried out or overseen by it; and

• periodical accounts of activities, including “house annals”.

We don’t have a sense of the exact number of records, but it is likely to be a significant number. The legislation permits the Director of the National Archives to engage with potential private holders and request a statement of the relevant records they hold. This will support allow the National Archives a better sense of the scale.

If you hold relevant records, there is an obligation on you under this legislation to preserve them. It is an offence to destroy, mutilate, falsify, or fail to maintain relevant records, or to export them from the State.

In addition, if the Director of the National Archives engages with you in order to request a statement of relevant records you hold, you must comply with this request within the time period specified by the Director.

This legislation was called for by survivors and former residents, affected persons, their families and advocates, who want to ensure that records which support understanding of their identity and the institutional systems which shaped their life experiences in such significant ways are preserved.

While the Birth Information and Tracing Act 2022 provides for some safeguarding of records in private hands, its scope relates to identity information for those who were adopted or have questions in relation to their origins – this legislation is broader in scope.

First and foremost, by mandating preservation, this legislation will ensure that access to the records is not rendered impossible.

More broadly, one of the potential benefits of this legislation is that it could increase transparency around what classes of records are held by whom. This means there is the potential to obtain a clearer picture on which private entities still hold classes of institutional records - records which may assist a person trying to understand their identity and how it was shaped by their institutional experience. Therefore, this legislation may help people know where to submit a request for their records under GDPR.

No, the legislation is concerned with preservation of the records in the first instance. If people hold records which are relevant here, it is envisaged that – through engagement with the NAI – these records may be voluntarily deposited with the NAI under their current acquisition policy, if they wish to do so.