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When a person makes a request for personal information, the agency responding to the request is entitled to withhold the information, if one of the exceptions to principle 6 of the Privacy Act applies.
One such exception is section 29(1)(b), which allows agencies to withhold “evaluative material”, if a promise was given to the individual that their identity and/or the information they provide would be kept in confidence.
Section 29(1)(b) is often relied on by agencies in the employment context where, for example, people provide their opinion in confidence on a colleague’s performance or his or her suitability for a role. This can include pre-employment screening. The person’s opinion or reference is the evaluative material which can be withheld in such situations.
Case note: Man objects to pre-employment screening
A typical scenario might be a job applicant finds that he or she is unsuccessful. Often, applicants will go on to request a copy of any references provided as part of the application process. We will often find that s 29(1)(b) applies in these instances, as there has been a promise of confidentiality given to the person who provided the reference.
In another complaint, a doctor sought information about an application process after he was not offered an interview for a specialist training programme. We found the specialist college could rely on section 29(1)(b) to withhold the names of his referees and the information they provided. We considered that it was evaluative material and that the referees had relied on a promise of confidentiality when they provided the information during the application process.
Case note: Man seeks information from application process
However, the College was not entitled to withhold the point values, which were numbers representing the overall value of each referee’s response, as the scoring did not identify the referee or give details about what he or she had said.
In Director of Human Rights Proceedings vs New Zealand Institute of Chartered Accountants [2015] NZHRRT 54, an accountant requested comments made by peer reviewers in a review of his practice. The Tribunal decided that the NZICA was entitled to withhold the information under section 29(1)(b), saying:
“If the practice reviewers were aware that the information would or could be disclosed to the member concerned, their freedom to frankly record their evaluations and opinions would be undermined.”
This case note discusses a situation where an employer interviewed other employees during an investigation into allegations of sexual harassment. The information was collected in order to determine whether the employee should be dismissed. We were satisfied that the information in the interviews was evaluative material and the employer was entitled to withhold it.
Case note: Employee complains former employer ignored request for employment details
As with all requests for personal information, agencies need to assess the information and the circumstances surrounding its collection when deciding whether they can rely on a Privacy Act exception.
Image by Helix84 [CC0], via Wikimedia Commons
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