1 Feb 2004, 09:00

The complainant, through his solicitor, requested access to personal information about him held by his previous employer. The employer failed to reply to the request.

During the course of my investigation the employer released some information but withheld further information. This information is identified below as categories 1, 2 and 3.

Since some of the requested information was released nine months after the request, my investigation also considered whether the time limit imposed by section 40 had been breached.

Section 40

This section provides that when an agency receives a request for personal information it must decide as soon as practicable, and in any case within 20 working days, whether or not the request is to be granted, and give notice of its decision to the requester. Section 66(3) provides that failure to comply with the time fixed by section 40 is deemed to be a refusal to make the information available.

Where there has been a refusal, or deemed refusal, to make the requested information available, and there is no proper basis for that refusal, section 66(2)(b) states that there is an interference with the privacy of the individual concerned. A proper basis for a refusal most frequently requires consideration of whether any of the provisions in sections 27-29 of the Act apply to the information.

Although the employer released some information when I began my investigation, this was much later than the time limits in the Act allowed. It was my opinion that failure to respond to the request was deemed to be a refusal to make the information available, and that there was no proper basis to justify any refusal in relation to the information which was later provided. There was therefore an interference with the privacy of the complainant.

I then considered the material which the agency had continued to withhold to see whether any further interference with privacy had occurred.

Category 1

Category 1 comprised notes of interviews which the employer had conducted with other employees during an investigation into allegations of sexual harassment against the complainant. The employer sought to withhold the information pursuant to section 29(1)(b).

Section 29(1)(b) provides that an agency may withhold personal information from the individual concerned if the disclosure of the information, or of information identifying the person who supplied it, being evaluative material, would breach an express or implied promise:

(a)which was made to the person who supplied the information; and(b)which was to the effect that the information or the identity of the person who supplied it or both would be held in confidence;

"Evaluative material" is defined in section 29(3) as evaluative or opinion material compiled solely for a limited number of purposes, including the purpose of determining whether a person should be dismissed.

Before information can be withheld under section 29(1)(b), four conditions must be met:

(a)the information must be evaluative or opinion material compiled solely for one of a limited number of purposes set out in section 29(3); and(b)the information must be supplied to the agency seeking to withhold it; and(c)there must have been an express or implied promise made to the person providing the information that their identity or the information (or both) would be held in confidence; and(d)releasing the information to the requester would breach that promise.

I was satisfied that the information was evaluative or opinion material. The material was collected from other members of staff during an investigation into allegations of sexual harassment. The employer used this information to determine whether the employee should dismissed. I was also satisfied that the evaluative material had been compiled solely for the purpose of determining whether the complainant's employment should be terminated.

In this case, I noted that the employer obtained the information from its own employees. There was therefore an issue about whether it had been supplied to the employer or not. Early in the life of the Act, it was supposed that "supply" indicated that material was received from outside an agency. However, the Complaints Review Tribunal (as it then was), in Westwood v University of Auckland (1997) 4 HRNZ 107, explicitly addressed the issue of whether evaluative material provided by internal employees of an agency constituted "supply" for the purpose of section 29(1)(b). The Tribunal held that internal evaluative communications within an agency could sometimes be information "supplied" to the agency under section 29(1)(b) of the Act. However, this would only apply in circumstances where the provision of that material to the agency was over and above what that person can normally be required to do in the course of their duties.

The employees interviewed were factory workers. I was satisfied that they were not supervisors reporting on the performance of the employee. It was not part of their normal duties to provide information about another employee for the purpose of an investigation. Therefore I was satisfied that the material had been supplied in terms of section 29(1)(b).

Finally, I had evidence that an express promise had been made to the employees that the information supplied would be kept confidential. This was in order to encourage the free flow of information regarding the allegations. I was also satisfied that the release of the information would breach the employer's promise of confidentiality to those employees.

I therefore reached the opinion that the employer had a proper basis to withhold the category 1 material under section 29(1)(b).

Category 2

Category 2 comprised internal communications discussing material in category 1. Release of some of that information would have compromised the interests protected by section 29(1)(b) as discussed under category 1. I was satisfied the employer could also withhold that information pursuant to section 29(1)(b).

However, there was some information in this category to which none of the reasons for refusing access applied. Some of the information had already been released in other documents. Also, release would not identify the people interviewed or breach the promise of confidentiality. I was of the opinion that this material should have been provided to the requester, and that failure to do so constituted an interference with his privacy.

Category 3

This information related to an incident several years before the complainant's employment ended.

The employer sought to withhold some category 3 material under section 29(2)(b) of the Act. This provides that an agency may refuse a request if the information does not exist or cannot be found.

I was satisfied that the employer had undertaken a reasonable search to locate the information sought and that it had found no information about the alleged incident. Accordingly it was my opinion that the employer had a proper basis for its decision to rely on section 29(2)(b).

I advised the employee of my opinion and closed my file.

December 2004

Indexing terms: Access to personal information - employer - request not responded to within 20 days - no proper basis - interference with privacy - Privacy Act 1993 ss 40, 66(2)(b), 66(3) -  – section 40.

Access to personal information - employer - employee request for information relating to dismissal - evaluative material - "supply" - express promise of confidentiality - Privacy Act 1993 s29(1)(b) - Information privacy principle 6

Access to personal information - employer - employee request for records of incident several years previously - reasonable search made - information not found - Privacy Act 1993 s29(2)(b) - – Information privacy principle 6