An academic who was dismissed from his university position requested all of his work emails from a 12 month period of his employment. He asked to be given a computer hard drive containing all the emails. The university refused the request. It said the information amounted to about 12,000 emails and they were university property. The academic complained to our office.
The academic said he had been unfairly dismissed. On the day of his dismissal, access to his work email account was terminated. As a result, he lost contact with many of his colleagues, business partners and personal contacts.
After he made a request to the university, he was told he would be allowed access to some of the emails through an approval process. The academic said the effect of being cut off from his email account meant a significant financial loss, as well as humiliation, loss of dignity and injury to feelings. He was applying for two jobs at the time and he said his candidacy for both roles was seriously undermined because of the sudden termination.
He told our office he wanted all the emails, an apology and $100,000 in financial compensation.
The academic’s complaint raised issues under principle 6 of the Privacy Act 1993. Principle 6 says individuals have a right to have access to personal information held by an agency - but that right is subject to a number of withholding grounds.
The university told our investigator the academic had been dismissed for serious misconduct. The university had withheld the emails because in its view, the emails sent or received using the university’s IT system were university property.
The university accepted that under principle 6 of the Privacy Act, individuals had a right to access personal information held by an agency, but it disputed that all the emails contained personal information because the majority of them were work-related in content.
The university also argued the right in principle 6 applied to personal information that could be easily retrieved. If the personal information requested is not readily retrievable, section 29(2)(a) of the Act permits an agency to refuse the request. While some of the emails in the inbox and sent items folders might contain personal information about the academic, the personal information in those documents was not readily retrievable, since it needed to be identified and extracted from the 12,000 emails and additional attached documents.
The university also argued section 29(1)(a) applied, because disclosing the information would involve the unwarranted disclosure of the affairs of another individual. The university believed this was likely because of the volume of emails requested.
In addition, many of the emails were likely to contain information that was confidential to the university, its stakeholders and clients. The university was of the view that section 28(1)(a) also applied because making the information available to the requester would disclose a trade secret.
Our office formed the view that even though emails generated in a work capacity did meet the test of being ‘personal information’, it was reasonable for the university to refuse to provide them in the form requested.
We agreed with the university that the mixed nature of the information requested meant section 29(2)(a) could apply because the personal information was not readily retrievable.
We accepted that in order to process a request for such a large amount of personal information, and to determine what was and wasn’t personal information, would be significantly burdensome to the university and would impair efficient administration.
Section 42(2) of the Privacy Act says personal information should be made available to a requester in a way preferred by the individual requesting it. If the person requests their information be provided in a specific format that is how an agency should provide it.
However, section 42(2)(a) says an agency can refuse to provide it in the form requested if, by providing it in that form, it would impair efficient administration.
We noted the university had made an offer to release approved emails in some form other than the totality of a computer hard drive. But the academic declined this offer, despite attempts by our investigator to reach a compromise between the two parties.
We formed a final view that there was no interference with the academic’s privacy. We advised him that he could provide the university with a specific list of the information he wanted to access, but we did not consider any further action by our office was necessary. We offered the academic an opportunity to respond to our view but he did not reply. We then closed the file.
Work emails ‒ access ‒ unwarranted disclosure of affairs of another individual ‒ disclose a trade secret ‒ refusal to provide information in form requested ‒ no interference ‒ Privacy Act 1993; principle 6, ss 28, 29, 42