14 Feb 2020, 09:00

A former employee made a request to her former employer for a draft report on an investigation into her manager’s bullying. The draft had been prepared by an external investigator.

The employer provided her with the draft report but withheld information to protect the privacy of other individuals, including the manager.

The former employee sought the full unredacted draft report.

The complaint

Her complaint raised issues under principle 6 of the Privacy Act. Under principle 6, individuals have a right to request access to personal information held by an agency, subject to the withholding grounds in Part 4 of the Act.

Difficulty can arise when the information requested is mixed. In other words, the information is about the requester but also contains interactions with, or reference to, other people. An agency must therefore consider:

• First, if the information is about the requester.
• Second, if the information includes information about other people.
• And third, if the disclosure of other people’s information would be unwarranted.

We notified the agency seeking its response.

Content of the report

The employer noted some concerns about the content of the draft report:

• It included an interview with another staff member who had recently left the agency about the bullying they had experienced by another manager.
• Some staff spoken to had done so in confidence because of concern their comments would be seen by the manager accused of bullying. The former employer said it was necessary to withhold the names of those staff members to protect their identities and ensure confidentiality was maintained.
• Some of the staff members interviewed had since left the agency and it was not possible to consult with them about the release of their information.
• The draft report included some personal information about the manager which was unconnected to the bullying claims.
• The former employer concluded the draft report was biased and inaccurate and had decided not to proceed to a final report. It did not circulate the draft report on the basis that it could have exacerbated a tense working environment at the time.

After being notified of the complaint, the former employer reviewed the redactions it had made in the version of the report given to the complainant. It concluded that some of the original redactions were incorrectly made – but stood by its original decision to withhold some information.

The agency’s response

The former employer decided the draft report’s findings were personal information about the manager and said it had withheld parts of the report under s 29(1)(a) of the Privacy Act.

Section 29(1)(a) enables an agency to withhold information from a requester if it is satisfied that such a disclosure would involve ‘unwarranted’ disclosure of the affairs on another person in the circumstances. The term unwarranted has been defined as ‘unjustified’ or ‘without good or sufficient reason”.

Watson v Capital & Coast DHB

In a previous bullying case (Watson v Capital & Coast DHB [2015] NZHRRT 27), the Human Rights Review Tribunal referred to the agency’s policy requiring that documents be provided to the other party to the complaint. The Tribunal found this was relevant to the assessment under s 29(1)(a) and there was no interest that justified departing from the policy.

The Tribunal noted “this is not a case in which personal information about two persons has been collected for different purposes over various periods of time, particularly in circumstances which have created an ‘expectation’ of non-disclosure or of partial disclosure only”.

Our view

We decided that most of the draft report’s content was about the complainant but that it did include personal information about other individuals. The fact the draft report’s findings were critical of the manager and that the agency was unable to consult with him (because he had left to go overseas) did not mean that disclosure to the complainant would be unwarranted.

In this complaint, the former employer had discussed the Terms of Reference of the complaint with the complainant and said that she would have an opportunity to see the report after any privacy concerns had been addressed.

The draft report itself stated “the respondent and complainant would have a full opportunity to comment on the draft before being finalised”. It appeared both the complainant and the manager would have been aware this was the process the former employer intended to follow in its investigation. This supported our view that the draft report should be provided to the complainant.

We formed the view all personal information about the complainant in the draft report should be released and that the agency did not have a proper basis for its decision to rely on section 29(1)(a) to refuse the request. Any information in the report that was not about the complainant was outside the scope of our investigation and could be withheld.

End note

The former employer arranged for the complainant to view the report at a time that was convenient to her, provided she did not take any photos or notes of its content. Given that the report contained mixed information about a few individuals, providing access to the report in this way balanced her right to access the information with the rights of the other individuals to have their information protected. The complainant accepted this condition and we closed the file.