Publication
Hidden History? - The Law, the Archives and the General Register Office
Published on
Last updated on
Published on
Last updated on
Published July 2012
An Investigation by the Ombudsman into Access to Historical Records of Births, Deaths and Marriages Held by the General Register Office
July 2012
This report is concerned with my investigation into restrictions on access for researchers and for the public generally to the registers of births, deaths and marriages. In recent years the level of access to these life event registers, which are maintained in Ireland by the General Register Office (GRO), has actually reduced.
My investigation was prompted by a complaint from a man who had been refused access by the GRO to historic death registers for his locality. My complainant had sought access to the death registers for a district in Co. Westmeath for the period 1864-1900; he required access for the purposes of a local history project in which he was involved. He told my Office that, prior to the most recent legislation in 2004, he would have been given the kind of research access he needed.
I decided to pursue an investigation for a number of reasons, not least the possibility that the actions of the GRO may amount to maladministration. I was concerned that there may have been a reduction in the level of access to records which are of immense cultural and historical interest, and I was also aware that, for economic and other reasons, other State bodies had facilitated access to similar records and were committed to increasing access in the future.
The GRO is the repository of a vast archive of material relating to the people of Ireland. According to the Council of Irish Genealogical Organisations, the GRO holds the largest and most complete set of data archives relating to the people of Ireland - several million records of births, deaths and marriages, stretching back as far as 1845. As the Council puts it, even the holdings of the National Library and the National Archives do not come close to paralleling the historic completeness and importance of the records held by the General Register Office. Our Minister for Arts, Heritage and the Gaeltacht, Jimmy Deenihan T.D., has referred to Ireland’s archives as “almost our most important resource” (see Note 1 below) as they show where the country has come from and who we are.
A recommendation adopted by the Council of Europe (see Note 2 below) speaks of archives constituting "an essential and irreplaceable element of culture"; and it recognises "the wish of historians to study and civil society to better understand the complexity of the historical process in general, and of that of the twentieth century in particular".
In Ireland, and indeed in much of the developed world, there has been a huge upsurge of interest in archive records and, in particular, family history over the past decade or so. This interest is reflected in the popularity of television programmes such as the BBC and RTÉ’s ‘Who Do You Think You Are?’ and ‘The Genealogy Roadshow’. It seems that the more globalised the world has become, the more people need to know where they come from and who their ancestors are. As a country with a large Diaspora scattered all over the globe, the demand for information on Irish family history is great and growing all the time. The online publication by the National Archives of the 1901 and 1911 censuses has been enormously popular with nearly 650 million hits reported on the census website.
But it is also the case that the GRO's life event records have a value which is much wider than genealogy and family history. They constitute an invaluable source of data for historians and social researchers. It is easy to find very immediate examples of how these records are relevant to an exploration of events in our recent past. For example, any study of the lives of women who lived and died in the so-called Magdalene Laundries would ideally involve an examination of the death registers for the relevant districts where the Laundries were located. The same holds true for any research on children who died in the care of reformatories and industrial schools. Health researchers interested in the incidence of a particular illness, in a particular region, over a particular period would ideally examine the death registers of that region, over the particular period, to establish the number of cases in which the cause of death was linked to the particular illness. The restriction on access to the registers, which has happened over the past few years, hinders this kind of research.
Creating and maintaining a system of registration for births, deaths and marriages has obvious business uses in the realms of law and public administration. A deceased person's estate cannot be administered in the absence of an official confirmation of death. The State Pension cannot be paid until the applicant has proven he or she has reached 65 or 66 years; and so on. Clearly, the registration system must continue to serve these immediate, business purposes. Much progress has been made by the GRO in recent years in facilitating access to these important documents. For example, copies of birth, death and marriage certificates can now be ordered online without the need to visit a local registration office.
There are good economic reasons why access to Ireland's life events registers should be improved. Genealogical research has been identified as a major growth area for our tourism industry. Some specific projects have been started such as Ireland Reaching Out which encourages individual parishes to identify and engage with its own immediate Diaspora across the globe. From this engagement, hopefully, will come visits to Ireland from people with Irish roots. Fáilte Ireland is planning a homecoming festival, to be known as The Gathering, for Irish people and those of Irish ancestry for 2013. Part of The Gathering involves the global Irish Diaspora being invited to Ireland to trace their roots. Fáilte Ireland says this has the potential to be “Ireland’s biggest tourism programme ever” with a target of bringing 325,000 extra visitors to Ireland in 2013. Minister Deenihan is committed to the online publication of the 1926 Census in advance of The Gathering (though this will require legislation because of the 100 year rule applying to census material).
It is the case that no single public body is responsible for our archival material. While the GRO maintains the records of births, deaths and marriages, the National Archives is responsible for preservation of the national archives and making them available for public inspection; the National Library collects, preserves and makes accessible, material relating to Ireland; the Department of Arts, Heritage and the Gaeltacht develops and implements policy relating to our heritage; the Department of Transport, Tourism and Sport is responsible for policy relating to tourism initiatives; and the Department of the Taoiseach has a role in relation to various aspects of the operation of the National Archives Act 1986. With such a large number of bodies responsible for various parts of developing and implementing archival policy there is a danger that no single, clear national policy on archives will be fully developed. It would seem preferable that responsibility rests with one single Department or body.
In this present report I make three key findings. The first is that the current legislation governing the civil registration process, the Civil Registration Act 2004, does not allow for the GRO or its constituent offices to provide direct access for researchers and others who wish to inspect the actual register books. My second finding is that there is a right of inspection of registers of births, deaths and marriages (more than 30 years old) provided for in separate legislation, namely, the National Archives Act 1986. This second finding is significant because, hitherto, the National Archives Act has not been used to avail of access to registers held by the General Register Office. So, as I understand the law, people do have an existing legal right to inspect the registers for births, deaths and marriages - as held by the GRO - provided the records sought are at least 30 years old. Consequently, my third finding is that the failure of the GRO to allow for inspection, under the National Archives Act 1986, of the indexes and registers over 30 years old, amounts to an undesirable administrative practice and is contrary to fair or sound administration (in the sense in which those terms are used in section 4(2)(b) of the Ombudsman Act 1980). In coming to this finding, I acknowledge that, at the time of the complaint that prompted my investigation, the GRO was unaware of any method of access other than that set out under section 61 of the Civil Registration Act.
We have an opportunity now to open up this rich cultural resource for Irish people and for the Diaspora. In my report I recommend that the GRO come together with the other bodies responsible for our archives to develop appropriate arrangements to facilitate public inspection of these records. I understand that much of the register material has already been converted into digital form (see Note 3 below) which suggests that much of the work necessary to make the registration entries more easily available may have already been done.
Emily O'Reilly
Ombudsman
July 2012
Notes
Note 1:
As reported by the Irish Times, 1 April 2011
Note 2:
No.R(2000) 13 of the Committee of Ministers on a European policy on access to archives
Note 3:
See reply from the Minister for Social Protection to parliamentary questions 286 & 287, 14 September 2011
This is a report of an investigation carried out by the Ombudsman, Emily O'Reilly, into restrictions on access to historical records of births, deaths and marriages held by the General Register Office (GRO). The outcome will be of interest to historians, other researchers and individuals tracing their family roots.
Prior to the enactment of the Civil Registration Act 2004 researchers and other members of the public could browse registers of births, deaths and marriages from any particular time period or geographical area for a small fee. A register entry contains the name, date and place of a 'life event' and additional information, for example, the occupation of the deceased and cause of death on a death register, or the name of the father on a birth register. Following the commencement of the 2004 Act the public was no longer permitted to search registers of births, deaths and marriages. Under the 2004 Act they were required to apply in writing to the GRO, specifying the particular register entry to which they were seeking access, and they would then be given a copy of the register entry for a fee. This procedure severely restricted those wishing to carry out research into, for example, their family history or the history of a particular area. The Ombudsman was aware of the importance of providing access to these significant cultural and historical records and was of the view that the restriction on access was at odds with the move generally, both in Ireland and in other jurisdictions, to provide for wider access to these types of records.
Having carried out an investigation, the Ombudsman finds that the GRO is implementing the provisions of the Civil Registration Act 2004 correctly. However, during the course of her investigation the Ombudsman found that under separate legislation - the National Archives Act 1986 - there is a right of public inspection of those records of births, deaths and marriages which are over 30 years old. The Ombudsman recommends that the GRO engage with other bodies, such as those which have a responsibility for the national archives, to explore options for facilitating the public's right to inspect these records.
While the GRO has accepted the Ombudsman’s recommendation, it is a qualified acceptance. This arises from the fact that the GRO does not accept the Ombudsman’s finding that GRO records, more than 30 years old, are covered by the right of inspection provided for in the National Archives Act 1986. Whether or not the National Archives Act 1986 applies to GRO records is a matter of legal interpretation. The Ombudsman’s detailed and reasoned legal advice – which she is publishing – supports her finding. The GRO has stated that it has advice from the Office of the Attorney General that the National Archives Act does not apply. The GRO has declined to provide the Ombudsman with a copy of this advice or, indeed, to outline the reasoning of the advice. The Ombudsman cannot have any view on the merits of the GRO position in circumstances where she has not been given the reasoning underlying that position. It is surely in the public interest that all relevant legal advice, paid for by the public, should be available to inform the public on a matter of public interest.
The Complaint
The Ombudsman's investigation was prompted by a complaint from a member of a Heritage and Historical Society which was researching the history of a townland in County Westmeath. Mr Johnson (not his real name) wished to examine the death registers for the area from 1864 to 1900 for the purposes of establishing the occupations of local people from that time. The death registers were held in a regional office. However Mr Johnson was informed that he would have to provide the name of each deceased and the approximate date and place of death, together with €6 for each uncertified copy of the death register. Mr Johnson was particularly interested in identifying those registers which indicated that the individual was a craftsman. In order to achieve this Mr Johnson would have had to pay for, and examine, a copy of the register for every death that occurred in the area between 1864 and 1900. Mr Johnson pointed out that previously it had been possible to examine the actual registers for an hour by booking in advance and paying a small fee. That facility had been withdrawn.
Response from the General Register Office
When the Ombudsman contacted the GRO it referred to section 61 of the Civil Registration Act 2004. The section provides the particular procedure for accessing the registers in the manner described above. The GRO was of the view that under the 2004 Act direct access to the registers by any person other than certain officials of the GRO was prohibited by that Act.
The Investigation
The Ombudsman considered that the actions of the GRO were likely to affect a considerable number of people. It was clear that access to valuable public records was being restricted and legitimate historical and social research was being hindered. Furthermore, the GRO's position appeared at odds with the practice of equivalent bodies internationally and with the actual practice by some public bodies in Ireland in facilitating access to historical records. For example, in Scotland and England many historical life event registers are available online. In Ireland the 1901 and 1911 censuses have been published online by the National Archives. There is also a strong public interest in 'life event' records as demonstrated by the popularity of television programmes such as RTE's and the BBC's Who Do You Think You Are? and The Genealogy Roadshow. Events such as The Gathering in 2013, which Fáilte Ireland says will be Ireland's 'biggest tourism programme ever', will encourage the Irish Diaspora to visit Ireland to trace their roots. Given the importance of the issue the Ombudsman decided to commence an investigation under the Ombudsman Act 1980.
During the course of her investigation the Ombudsman sought submissions from interested groups on the issues facing those wishing to access records of births, deaths and marriages, analysed the provisions of the Civil Registration Act 2004, and considered whether the GRO records may be available for inspection under any other legislation, for example the National Archives Act 1986.
Civil Registration Act 2004
Having examined the provisions of the Civil Registration Act 2004 and sought legal advice, the Ombudsman finds that there is no legal provision for direct access to register entries. In addition the GRO does not have discretion under the 2004 Act to grant access in any other manner.
National Archives Act 1986
Under the National Archives Act 1986 all "Departmental records" which are more than 30 years old must be transferred to the National Archives. However, the records of the GRO have not been transferred. This is due to a direction, issued under the Act in 1992 by the Taoiseach, which provided that the transfer not take place as the National Archives had insufficient storage space. However, taking legal advice into account, the Ombudsman finds that the indexes and registers of births, deaths and marriages held by the GRO and which are more than 30 years old should be available for public inspection under the National Archives Act 1986 notwithstanding that they have not been transferred. At present, this right of inspection under the National Archives Act is not being given effect by the General Register Office.
Recommendation
During her investigation the Ombudsman contacted the Department of Arts, Heritage and the Gaeltacht which has responsibility for the National Archives. The Department indicated a high level of interest in the Ombudsman's investigation and a desire to be involved in any initiative that may increase accessibility to the GRO records.
The Ombudsman recommends that the GRO engage with the Department of Arts, Heritage and the Gaeltacht, and other bodies as appropriate (such as those bodies that have a responsibility for the national archives), to explore options for facilitating the public's right to inspect these records.
As explained above, the GRO has accepted this recommendation but subject to the qualification that any improvement in accessing its records will be in the context of amendments to the Civil Registration Act 2004.
July 2012
The name of the complainant has been changed to protect his identity.
The Complaint
In July 2008 the Ombudsman received a complaint from Mr Andrew Johnson. Mr Johnson was a member of a local Heritage and Historical Society. The society was in the process of writing the history of a town in County Westmeath and wished to examine the death registers for the area from 1864 to 1900 for the purpose of establishing the occupations of local people from that time.
The death registers were held in a regional office of the Civil Registration Service (CRS) (See Note 1 below). The CRS maintains all records of births, deaths and marriages in Ireland. Statutory responsibility for the administration of the CRS rests with the Registrar General. His Office, the General Register Office (GRO), operates under the Department of Social Protection and is the central repository for records of life events (births, deaths and marriages) occurring in the State. For the sake of clarity this report uses the term ‘General Register Office’ when referring to the actions of the GRO or the Civil Registration Service.
The GRO informed Mr Johnson that it could not facilitate his request. Initially the GRO said that the office did not have the staffing resources required. It said that Mr Johnson could have copies of the death registers provided he supplied the name of each of the deceased, and the date and place of death, together with €6 for each uncertified copy of the death register (or €10 for a certified copy).
Mr Johnson was particularly interested in identifying those registers which indicated that the individual was a craftsman. In order for Mr Johnson to achieve this he would have had to pay for, and examine, a copy of the register for every death that occurred between 1864 and 1900. Mr Johnson pointed out that twelve months previously it was possible to examine the actual registers for an hour by booking in advance and paying a small fee. That facility had been withdrawn.
Preliminary Examination
The Ombudsman commenced a preliminary examination of the complaint and contacted the General Register Office.
The GRO reiterated the response it had given Mr Johnson and added that, following a review of health and safety standards in its Mullingar office, (the only office where research facilities were available in that region) it had ceased the practice of allowing public access to historical registers. It had issued a notice to the public to this effect in June 2007. It added that research was not a core function of the local registration office and that the GRO maintained a research facility at its office in the Irish Life Centre, Lower Abbey Street in Dublin. The facility in Dublin allowed for searches of indexes to birth, death and marriage records and for obtaining photocopies of records identified from indexes.
However, access to indexes alone would not have facilitated Mr Johnson. An index to a register contains the names, dates and places where particular events took place only. While this can be sufficient information to enable particular entries in the registers to be identified, they do not contain any additional information, for example the occupation of the deceased, which Mr Johnson was interested in, or the cause of death (see Appendix 1) for an example of a typical index and register).
The GRO referred to the Civil Registration Act 2004 and said that access to the registers by any person other than certain officials of the GRO (such as the Registrar General or Superintendent Registrars) was prohibited by that Act. Therefore, the GRO said, it could not give direct access to the registers of births, deaths and marriages to any member of the public.
In her preliminary examination, the Ombudsman found that there was no explicit prohibition on access in the manner sought by Mr Johnson. The Ombudsman also discovered that the level of public access to such records appeared to vary around the country. In Waterford the death and marriage registers for County Waterford for the period 1864 to the early 1900s had been copied by the county library and are accessible through its library service. The Waterford death registers are also available online at www.waterfordcountylibrary.ie.
There is also the fact that a large number of birth, death and marriage indexes from Ireland have been made available by the Church of Jesus Christ of Latter-Day Saints which had been allowed to microfilm the indexes. It seems that volunteers from the Church were given access to the Irish indexes in the 1960s and the records, that were microfilmed, were made available by them through the Church’s Family History Centres and its website www.familysearch.org. The Church claims to have access to over 26 million Irish records ranging from 1620 to the present day.
The restriction in access also seemed to be inconsistent with the approach adopted by the National Archives in publishing the 1901 and 1911 Censuses online and free of charge. These census returns contained information that was at least equally sensitive as the information contained in death registers, for example information on levels of literacy. It also appeared that other jurisdictions give greater access to similar records of a similar age. For example, in Scotland (www.scotlandspeoplehub.gov.uk), in England and Wales (www.directgov.uk) and in British Columbia, Canada (www.bcarchives.gov.bc.ca) many historical life event registers or indexes are available online.
The Ombudsman was aware of the practice of other public bodies in Ireland that held important public records. The Department of Education and Science provided research access to its archive of records relating to reformatories and industrial schools which resulted in the publication of the book ‘Suffer Little Children’ and the related television series ‘States of Fear’. The records to which the Department provided access were far more sensitive than those sought by Mr Johnson.
In light of the above the Ombudsman wrote to the Registrar General of the GRO on 8 January 2009 and asked that it review its position with a view to granting Mr Johnson access to the local death registers for 1864 to 1900.
On 12 January 2009 the Registrar General replied that he was seeking legal advice on the issues raised by the Ombudsman. On 7 August 2009 the Registrar General replied that his Office could not accede to Mr Johnson’s request and referred specifically to sections 61 and 66 of the Civil Registration Act 2004.
The Ombudsman informed Mr Johnson of the GRO’s response and the outcome of the preliminary examination of his complaint. The Ombudsman considered that the actions of the GRO were likely to affect a considerable number of people. It appeared that access to valuable public records may be restricted, and legitimate historical and social research might be hindered. Furthermore, the GRO’s position appeared at odds with the practice of equivalent bodies internationally and with the actual practice by some public bodies in Ireland.
Section 4(2)(b) of the Ombudsman Act 1980 provides that the Ombudsman may investigate any action taken by or on behalf of a public body within her remit if the action has or may have adversely affected a person and the action was or may have been:
“(i) taken without proper authority,
(ii) taken on irrelevant grounds,
(iii) the result of negligence or carelessness,
(iv) based on erroneous or incomplete information,
(v) improperly discriminatory,
(vi) based on an undesirable administrative practice, or
(vii) otherwise contrary to fair or sound administration.”
Given the importance of the issue, the Ombudsman decided to commence an ‘own initiative’ investigation in accordance with section 4(3)(b) of the Ombudsman Act 1980 which allows the Ombudsman investigate an action of a public body notwithstanding the fact that a complaint has not been made to her.
Note 1:
The Health Service Executive is responsible for management of the CRS at a local level.
Notification of Investigation
On 29 October 2009 the Ombudsman notified the Registrar General of the GRO of her decision to investigate the practice within the GRO of refusing direct access to entries contained in the registers of births, deaths and marriages (see Appendix 2). The GRO was invited to make a written response to the notification of the investigation and provide copies of any material relevant to the investigation. The GRO was also invited to provide a copy of the legal advice it had received or, alternatively, an outline of that advice.
Response of the General Register Office
On 23 November 2009 the Registrar General of the GRO replied that:
“... access to registration data is governed by sections 61 and 66 of the Civil Registration Act 2004. Section 61(1)(a) provides that a person may search an index to a register provided certain conditions are met. This Office is of the view that, were it intended by the Oireachtas that members of the public have access to registers, the Oireachtas would have granted such a power. This view is reinforced by the fact that Section 66 provides that I may give information contained in the registers to specified bodies for specific purposes, that such information may only be given following consultation with the Minister for Social & Family Affairs and that the information be prescribed. ...
It is clearly not intended by the Oireachtas that general access to registers is permitted. Otherwise, the Oireachtas would not have gone to the effort of circumscribing the information that may be given to others under section 66, or of circumscribing the way in which members of the public access information under Section 61.
Legal advice provided to this Office is privileged. However, by way of summary, I can say that the legal advice is to the effect that I am obliged to comply with the procedures set out in Section 61 of the Civil Registration Act.”
A History of the Registration of Births, Deaths and Marriages
The Ombudsman considered the history of the registering of births, deaths and marriages leading up to the Civil Registration Act 2004. In 1845, legislation came into force which provided for the registration of civil marriages in the island of Ireland and for the regulation of all non-Catholic marriages. The Act also created the Office of the Registrar General. The Registrar General is responsible for the collation and custody of all birth, death and marriage records. Further legislation, which became operative in 1864, provided for the inclusion of Catholic marriages, together with all births and deaths, at which stage a comprehensive registration system was in place.
Throughout the latter part of the nineteenth century and the early twentieth century additional legislation was introduced which had implications for the registration system. For example, the Marriage Law (Ireland) Amendment Act 1863 dispensed with the need for registrars to attend marriages in Protestant Dissenting Churches and other Christian denominations and provided for the registration of such marriages by the celebrant. It also introduced the present notice procedure for marriage in the office of the registrar.
The law relating to births and deaths also underwent a number of changes. For example, an Act in 1879 provided for the registration of births and deaths outside the United Kingdom in respect of Irish born officers and soldiers of the Crown on foreign service and their dependants. The pre-1921 records are held by the General Register Office.
The main outcome of the establishment of the Irish Free State in 1922, as regards the registration system, was the restructuring of the system to provide separate and independent registration systems for the Irish Free State and Northern Ireland. The establishment of the office of the Registrar General, Belfast provided a separate administration for Northern Ireland. At the same time the Adaptation of Enactments Act 1922 ensured the continuance of the legislative basis for the registration system for the rest of the country. The responsibility hitherto exercised by the Lord Lieutenant was transferred to the Minister for Local Government and Public Health by the Ministers and Secretaries Act 1924 and later to the Minister for Health, when the Department of Health was established as a separate entity in 1947.
The Births, Deaths and Marriages Registration Act 1972 allowed for changes in the structure of the registration system by assigning to the eight regional health boards, created by the Health Act 1970, the responsibility for making appointments of Registrars of Births, Deaths and Marriages.
The possibilities offered by modern technology provided an impetus for change and the GRO is in the process of moving from the use of paper based systems to electronic systems. The Government decision of 1992 to move the GRO to Roscommon and to provide access to certified copies of the records of the Office directly through local registration offices required the conversion of the GRO records to an electronic medium. The GRO says that work on this project has been largely completed and it is now possible to obtain certified copies of all birth entries (1864 to date), death entries from 1924 to date and marriage entries from 1920 to date from any local registration office, irrespective of the District in which the event occurred. The Headquarters of the GRO relocated to Roscommon in April 2005.
In addition to the conversion of the archival records to an electronic medium, the capture of all new registration records on an online computer system commenced in August 2003. This provided for a significant improvement in the timescale in which the record, and its associated index, is available in the GRO and to all local registration offices. The electronic capture of the archive material and the development of an on line registration system required significant changes in legislation to facilitate the introduction of the new systems. The legislative changes concerned are contained in the Social Welfare (Miscellaneous Provisions) Act 2002 and in the Civil Registration Act 2004.
The Civil Registration Act 2004
The Civil Registration Act 2004 was enacted as part of the Civil Registration Modernisation Programme. According to the then Minster for Social and Family Affairs, the main objectives of the Act were to:
In its correspondence with the Ombudsman, the GRO had referred to section 61 of the Civil Registration Act in refusing direct access to the registers of births, deaths and marriages. Section 61 states:
“(1) Subject to sub-sections (3) and (4), a person, following an application in writing, in a form standing approved by An tArd-Chláraitheoir [Registrar General] or a form to like effect, in that behalf to An tArd-Chláraitheoir, a Superintendent Registrar, a registrar or an authorised officer and–
(a) on payment to him or her of the prescribed fee, may, subject to such conditions (if any) as may stand determined by An tArd-Chláraitheoir, search an index to a register maintained under section 13,
(b) on payment to him or her of the prescribed fee, be given by him or her-
(i) A copy, certified by him or her to be a true copy, or
(ii) A copy,
of an entry specified by the person in such a register.
(2) Subject to sub-sections (3) and (4), An tArd–Chláraitheoir, a superintendent registrar, a registrar or an authorised officer shall, on application by a person to him or her in that behalf in writing and –
(a) on payment to him or her of the prescribed fee, search such of the registers maintained under Section 13, and the indexes thereto, as are specified in the application, or
(b) on payment to him or her of the prescribed fee, give to the person-
(i) A copy, certified by him or her to be a true copy, or
(ii) A copy,
of an entry specified by the person in any such register.”
Section 61 draws a distinction between a search of the indexes which may be carried out by a member of the public directly, and a search of the registers which may only be carried out by the Registrar General or a member of his staff. Section 61 provides that an individual may, after applying in writing and paying a fee, search an index to a register. If the individual wants a copy of the entry in the register, he/she must pay a further fee. An individual may also apply in writing to the Registrar General or certain members of his staff and they will search registers, and indexes to the registers, specified in the application. A copy of an entry to the register may then be obtained on payment of a further fee.
Prior to the 2004 Act direct access to the registers was available. The question arising for the Ombudsman is whether section 61 provides the only mechanism for access to indexes and registers, or whether some other right of access exists, either in the 2004 Act or elsewhere. In considering this, the Ombudsman examined other provisions in the 2004 Act, Oireachtas Debates, and the Explanatory Memorandum published with the Civil Registration Bill when it was being progressed through the Oireachtas.
In relation to the Act itself the Ombudsman notes that it contains no explicit prohibition on direct access to the registers. Furthermore, it might be argued that section 8(1) of the Act allows the Registrar General discretion to change the GRO arrangements to allow direct access to the registers. Section 8(1) sets out the principal functions of the Registrar General including:
“(c) Where appropriate, to modify and adapt the Civil Registration Service so as to provide for changing needs and circumstances (including the use of electronic or other information technology) in relation to the Service”.
In the course of contacts with the GRO while examining the complaint from Mr Johnson, the Ombudsman's Office suggested that, in the absence of a specific prohibition on granting direct access to the registers, it was open to the GRO to apply the 2004 Act flexibly. On this approach, the provisions of section 61 might be seen as providing for one specific access mechanism while leaving it open to the Registrar General to facilitate other forms of access to historical or archival records within the discretion provided for at section 8(1) of the 2004 Act.
The Ombudsman's Office set out its preliminary position in the following terms:
"The GRO position appears to be that, under the relevant legislation, all that is provided for in terms of public access to the Death Registers is a right of access to the indexes and a right to be provided with a copy of any specific Register entry identified (whether through the indexes or otherwise); the GRO appears to be taking the position that, in the absence of a specific statutory right to view the actual Register books, it should not provide such access.
The consequence of this GRO position ... is that access to valuable public records is being restricted and legitimate historical and social research is being hindered. Furthermore, based on the enquiries we have made, it would seem that the GRO position is at odds with the practice of equivalent bodies internationally and at odds with actual practice in Ireland both in the past and, in several instances, in the present.
Our research to date suggests the following:
In pursuing these issues with the GRO, the Ombudsman was conscious that the Civil Registration Act 2004 was developed and enacted with the specific intention, amongst other things, to modernise the civil registration process. The legislation was preceded by a consultation paper in 2001 (see Note 1 below). While the consultation paper covers many issues, it is very clear that under the modernisation programme service to all users of the registration service will be enhanced and improved. The consultation paper specifically recognises that one of the benefits of registration records is that they "[enrich] our cultural identity by providing a key source of information for genealogists and family historians and for future generations to explore and use". [Para. 1.7]. The consultation paper also "recognises that there is a need to preserve, maintain and provide access to [registration] records for legal, historical and family research purposes". [Para. 3.78]. Furthermore, the consultation paper notes the importance of efficient access to registration records and, in that context, comments that "(g)enealogists, family historians and historical societies have lobbied for greater access to historical registration records". [Para. 4.2] It is very clear from the consultation paper that the modernisation programme should result in greater and easier access to historical and archival records rather than, as has been the case in practice, a reduced level of access.
The Civil Registration Act 2004 was enacted in the context of this modernisation programme. It appears to be the case that the intention of the sponsoring Minister was that, at a minimum, the existing level of access to records for researchers would be maintained. For example during the Seanad discussion on section 61 of the Civil Registration Bill both Senator Mary Henry and Senator Brian Hayes expressed concern that the construction of section 61 restricted the public’s right to search indexes and registers. The then Minister for Social and Family Affairs replied that:
(See Note 2 below).
Nevertheless, the position of the GRO is that it has no legal authority to provide access to the registers other than by way of the restricted process provided for at section 61 of the 2004 Act. In effect, the GRO is saying that the effect of the 2004 Act has been to restrict the right of access rather than, as envisaged in the consultation paper, to enhance the right of access.
In order to clarify the position, the Ombudsman sought legal advice. The question put to the legal adviser (along with a question regarding access under the National Archives Act 1986 - see below) was whether the specific access arrangements provided for at section 61 - involving access to the indexes and the provision of a copy of a specified entry - have the consequence that other access arrangements are prohibited. The Ombudsman's legal adviser concluded that, while there is no clear cut answer and there is a credible alternate position, it was her view that the 2004 Act does not give the Registrar General the discretion to allow direct access to the registers and that the limited form of access under section 61 is the only form of access permitted under the 2004 Act. The Ombudsman has decided to accept this advice and she acknowledges that it supports the position adopted by the GRO in the context of the specific complaint from Mr Johnson. What this means is that, whether intentionally or by default, the Oireachtas in enacting the Civil Registration Act 2004 restricted the then existing arrangements for access to the registers.
In the light of this, the Ombudsman decided to look at whether there might be a right of access to historical and archival registration records under some other access regime outside of the 2004 Act. Neither the Data Protection Acts nor the Freedom of Information Acts seem particularly relevant. However, the National Archives Act 1986 may well be relevant.
The National Archives Act 1986
Under the National Archives Act 1986 “Departmental records” which are more than 30 years old must be transferred to the National Archives to be made available for public inspection. “Departmental records” includes records of public bodies such as Government Departments, the courts and the General Register Office. The Ombudsman considered whether those registers of births, deaths and marriages which were more than 30 years old ought to have been transferred to the National Archives and so made available to the public.
On 11 December 2009, the Ombudsman wrote to the Director of the National Archives for his opinion. The Director informed the Ombudsman that the records of the GRO were Departmental records and would, in the normal course of events, be transferred to the National Archives. However, the records of the GRO along with records of a number of other bodies were covered by a direction issued by the Taoiseach (see Note 3 below) in 1992 under section 8(8) of the National Archives Act 1986.
Section 8(8) provides that the Taoiseach (see Note 4 below), with the agreement of the Director, may direct that the transfer to the National Archives of any group of Departmental records be “not proceeded with until he is satisfied that arrangements for such transfer are adequate”. The Director informed the Ombudsman that the National Archives has never had the storage space required to enable it to accept all Departmental records. The records of the GRO are among those records that have never been transferred to the National Archives. The Director told the Ombudsman that until there was sufficient space in the Archives he would not be in a position to advise the Minister for Arts, Heritage and the Gaeltacht to amend or revoke the direction made in 1992.
The Director also pointed out that even if the National Archives had the accommodation available, and the direction of 1992 was revoked or amended, it would be open to the Registrar General to issue a certificate under section 8(2) of the National Archives Act. Under section 8(2) the Registrar General could certify that registers of births, deaths and marriages which are more than 30 years old are in regular use in the GRO or are required in connection with its administration, and that their transfer to the Archives would interfere seriously with the administration of the General Register Office. Unlike certificates under section 8(4) of the Act, certificates made under section 8(2) do not require the consent from the Department of the Taoiseach. While section 8(2) can prevent the transfer of records to the National Archives, it does not withhold them from public inspection. Furthermore, the Taoiseach retains the power under section 11 of the Act to direct that Departmental records, which are more than 30 years old and continue to be retained in a Department, be transferred to the National Archives to be made available for public inspection.
The Ombudsman then considered whether the registers are available for public inspection despite the fact that they have not been transferred to the National Archives. Section 10 of the National Archives Act provides that:
"all archives in the custody of the National Archives or held elsewhere in accordance with this Act shall ... be available for public inspection,...".
Clearly the records of the GRO are not “in the custody of the National Archives”. However, if the records are "archives" and "held elsewhere in accordance with the Act" they should be available for public inspection as provided for by section 10, irrespective of the direction by the Taoiseach which is concerned with adequate storage of the records, not inspection.
Are the GRO records ‘archives’?
Archives are defined in section 2 of the National Archives Act 1986:
"(1) 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 Ireland 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 GRO indexes and registers do not fall within any of the four categories set out in section 2. However, given that the definition is not exhaustive there are clearly other classes of records which the Act envisages as falling within the definition of “archives”. The indexes and registers of births, deaths and marriages (or at least those more than, say, 100 years old) would arguably, constitute archives in the dictionary definition, or ordinary use of the word.
Even if the records were “archives” they would also have to be “held elsewhere in accordance with this Act" for them to be available for public inspection. The indexes and registers are not held by the National Archives but by the General Register Office. It might be argued that the records are held elsewhere in accordance with the Act as, but for the section 8(8) direction, they would have been transferred to the National Archives.
Interestingly, during the course of the Dáil debates on the introduction of the Civil Registration Act 2004, 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 5 below).
Given the importance of the issue and in view of the position expressed by the Director of the National Archives, the Ombudsman decided to seek legal advice. The legal advice (see Appendix 5) concluded that the GRO records which are more than 30 years old should be available for public inspection notwithstanding that they have not been transferred to the National Archives. The records may be regarded as archives for a number of reasons, not because of the usual definition of archives, but because they are Departmental records which are of a type which is envisaged to be governed by the Act. The legal advice also concluded that the records are archives “held elsewhere in accordance with the Act” as, but for the direction under section 8(8), they would have been transferred to the National Archives.
Taking the legal advice into account the Ombudsman considers that the GRO records, which are more than 30 years old, are ‘available for public inspection’ under the National Archives Act 1986. The Ombudsman considers that this availability for public inspection is in the same sense that other records transferred to the National Archives are available for public inspection. For example, it could not be said that the availability of records through the mechanism set out in section 61 of the Civil Registration Act 2004, which involves identification of specific records and payment of fees, amounts to records being ‘available for public inspection’.
Note 1:
Bringing Civil Registration into the 21st Century’, May 2001 (available at www.groireland.ie)
Note 2:
Seanad Eireann, Vol. 175 No.11, Civil Registration Bill 2003: Committee Stage, 18 February 2004.
Note 3:
When the Ombudsman requested a copy of the direction issued by the Taoiseach she was informed by the National Archives that it did not have a copy. The National Archives produced documents suggesting that a direction had been drafted by its Director and that the direction had been signed by the Taoiseach.
Note 4:
The power for making directions under section 8(8) now rests with the Minister for Arts, Heritage and the Gaeltacht.
Note 5:
See Deputy Neville 28 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 was fairly widespread and that the Society may have been advised that legislative change would be necessary.
General
The Ombudsman’s investigation focused on the following areas:
Submissions from interested groups
In order to inform her investigation, the Ombudsman wrote to a number of groups which interact with the GRO to establish among other things (i) whether access to the actual registers is desirable or necessary, (ii) whether the GRO’s practice inhibits research (iii) how the practice in Ireland differs from other jurisdictions and (iv) any other comments that may be relevant to the Ombudsman’s investigation. A list of the bodies contacted is contained in Appendix 3. A small representative sample of the comments received is reproduced below:
The Need for Access
“Restricted availability of birth, death and marriage registers to researchers has been a serious drawback for some time”
“It is imperative that not only should APGI [Association of Professional Genealogists in Ireland] members have access to the actual registers (or copies of them) but that all genealogists and historians should have the same access. Microfilm copies of 'historic' national registers could easily be made available throughsuch institutions as the National Archives and/or the National Library”
“Demands for access to these types of documents are only going to increase. Once their administrative use has passed, they become more valuable as a resource for society as a whole.”
“it is felt that it would pose no problem to facilitate access to material after 100 years; especially death records, which can have no privacy implications. This is the policy in relation to church registers and others in many institutions. If the registers are less than 100 years old, then, of course, a separate set of standards apply.”
The Civil Registration Act
“Unfortunately, despite very strong opposition being voiced prior to the passing of the Civil Registration Act other than through searching an index the long established right to make searches in the locally held civil registers was rescinded.”
“The 2004 legislation has rescinded the long established right to carry out searches among the locally held original Registration District books”
“The authorities used to recognise that at times a manual search through a Registration District book may be the only way to locate the required entry without reference to the index attached to the book.”
Research facilities
“Citing 'Health and Safety' as an issue, the GRO Research Room is frequently closed mid-morning, due to the fact that there are no more desks available. Some researchers have noted that the GRO research room sometimes remains closed for a considerable length of time after many desks have been vacated.”
“...professional researchers spend a great deal of time and money at the GRO research room but are never consulted about customer care or changes in policy.”
“With the numerical strength of surnames within certain localities in Ireland, together with the many possible spelling variations of surnames, the information included in the GRO (national) indexes can prove too vague and thus, unsatisfactory ... Researchers may have to purchase multiple copies of records before the relevant one is identified. Furthermore, the work of the researcher can be further frustrated with the imposition of a maximum of five photocopies per day”
“ recently, one genealogist searching for a Michael Sullivan (or O'Sullivan) birth in the second half of 1934 noted that there were eighteen such births registered in Ireland. Given the limit of five records per person per day, in order to identify the correct Michael O'Sullivan (son, of Thomas and Catherine O'Sullivan) it was necessary to pay at total of €72 over a period of four days.”
Fees
“The situation is exacerbated by the imposition of high fees to examine indexes as well as an additional fee for copies of entries in actual registers”
“The GRO Research Room practice of issuing just five photocopies per day to any one individual is very restrictive. Apart from gross inconvenience to researchers who require multiple copies in a day, it seems somewhat unjust to the tax payers that anoffice such as the GRO which has the potential to generate huge daily income for Government is turning away potential Irish and international customers with this restrictive local rule.”
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:
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.
Findings
Having concluded her investigation the Ombudsman finds that:
Recommendation
In light of the finding that birth, death and marriage records held by the GRO, and which are more than 30 years old, should be available for public inspection under the National Archives Act 1986, the Ombudsman recommends that the GRO engage with the Department of Arts, Heritage and the Gaeltacht, and other bodies as appropriate (such as those bodies that have a responsibility for the national archives), to explore options for facilitating public inspection of these records.
The GRO should report to the Ombudsman on progress on implementation of this recommendation at six monthly intervals, beginning six months from the date of this report, and until satisfactory new arrangements have been made.
The Ombudsman understands that any option considered must seek to minimise or eliminate the possibility of fraud or other abuse, and have regard to the conservation of the records.
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
Ard Cláraitheoir
General Register Office
Government Offices
Convent Road
Roscommon.
Ombudsman Investigation
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 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:
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.
Investigation Process
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.
Yours sincerely,
______________________
Pat Whelan
Director General
Appendix 3 - Organisations invited by the Ombudsman to make submissions
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.
Yours sincerely
_____________________
Kieran Feely
Registrar General
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”.
CONCLUSIONS
...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.
Notes
Note 1
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 2
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.