11 May 2019, 09:00

A woman taking a personal grievance against a former employer asked for information about her. The employer said the information had been given to him verbally and he refused to give it to her.

The woman was taking a personal grievance case to the Employment Relations Authority. As part of that process, she and her lawyer had made requests for information that her former employer claimed he had received about her from other staff, customers and suppliers of the business where she used to work.

The relationship between her and her former employer had completely broken down and had become acrimonious. The woman said the situation had affected her badly – she suffered from lack of sleep, extreme fatigue and stress as a result.

When the employer did not hand over the information, the woman made a complaint to our office. She told us she wanted copies of the statements that the former employer told her he had received from people who had said negative things about her.

Principle 6

The complaint raised issues under principle 6 of the Privacy Act. Principle 6 provides individuals with a right to request access to the personal information held about them by an agency.

To establish a breach of principle 6, a complainant must show that he or she made an information privacy request and that the agency either failed to confirm or deny within 20 working days that they held the information, or that it failed to allow access to the information (see Privacy Act, section 40(1)).

Our investigation

We notified the former employer of the complaint and asked him about the information the woman had requested. Emails from the employer to the woman’s lawyer outlined the information:

• “I have recently been made aware that (the complainant’s) last three jobs have had similar experiences.”
• “I am sure you are aware that your client’s prior employment history is known by many, and persons including customers and suppliers providing information to me, unrequested, warning me about behaviour … by (the complainant).”
• “I now also have statements from my staff and a number of customers but will use these to defend my business.”
• “I have no requirement to provide information to you from many statements that other staff and customer, former employers and suppliers have made.”

The employer responded to our letter and said that all relevant information about the woman had been provided to her lawyer. He noted that some information had been withheld because it was “not currently in a written form but verbal opinions and statements provided by various customers, suppliers, current and former staff” about the woman after her departure.

In several exchanges with our office, the employer reiterated the view that all relevant information had been given to the woman’s lawyer. He had withheld some information because it concerned the woman’s personal life. He also noted that some information had been given to him in confidence, but this information had been given to the woman in a recent employment mediation session.

The employer maintained that information held in his mind was not subject to the Privacy Act because it was not written down. He advised us he considered the matter was at an end.

Examination under oath

Because the employer refused to provide us with the information for our review, we took the rare step of issuing a summons for him to be examined under oath.

In the meeting, the employer said he did have information about the woman’s behaviour and habits at work. He said that he had been told things from various sources about her previous employment and, in at least one case, she had ‘left under a cloud’ but he did not know the details. He had withheld information about one complaint against her because of possible repercussions.

The employer admitted he had held all this information at the time the woman’s lawyer made the initial request, but had failed to provide it until the employment mediation took place several months later.

Our view

Under principle 6, the presumption of providing access to personal information is strong and is limited only by the withholding grounds in sections 27-29 of the Act.

The employer asserted that the information was evaluative and had been supplied to him in confidence, and so could not be released.

Section 29(1)(b) provides that an agency may refuse to disclose personal information that is evaluative material where disclosure of it, or of information identifying its supplier, or both, would breach an express or implied promise made to the supplier to the effect that the information or the identity of the supplier would be kept confidential.

Section 29(3) provides that for information to be classified as “evaluative material”, it must be “compiled solely” for the purposes specified in that subsection. It has been held that there must be “a common purpose in the supply and receipt of the information”.

For example, unsolicited complaints about an employee by a disgruntled client cannot be withheld under this provision because such a complaint would not be evaluative or opinion material compiled solely for the purpose of determining the suitability of the individual in employment. But such a common purpose can be identified where an employer requests a letter of reference from a referee nominated by a job applicant.

We were not persuaded that any of these withholding grounds had been met. The employer had failed to provide reasons and grounds to support his assertion that the information was evaluative and supplied in confidence.

Information held in the mind

Principle 6 applies to personal information held in a person’s memory. We referred to two previous decisions from the Human Rights Review Tribunal (then named the Complaints Review Tribunal) in 1999 and 2000, in which disclosure of information included “information which was initially held in the memory of the defendant but which she has, at the request of the plaintiff, subsequently committed to writing”.

We noted that accessing information held in a person’s memory could raise practical questions about the extent to which information must be sought out and disclosed when an information privacy request is received. But as noted in the employer’s emails, and in the evidence given under oath, the information appeared to be quite fresh in the employer’s mind. This demonstrated that the information should have been provided to the woman’s lawyer or our office.

In conclusion

We concluded that the employer had interfered with the woman’s privacy. His refusal to provide the information requested, or to seek an extension to the 20 working day limit, amounted to a breach of principle 6.

In addition, the employer failed to provide our office with the information for us to review it. This was a failure to comply with his obligations under s 91 of the Privacy Act, which requires a person to provide information relevant to an investigation by our office.

By taking the rare step of issuing a summons and examining the person on oath, we were able to access and assess the information sought. Had the individual continued to refuse to provide the information to us for our review, he would have been committing an offence under s 127 of the Privacy Act of obstructing or hindering the Privacy Commissioner and could have been subject to prosecution.

We found there had been an interference with the woman’s privacy and closed the investigation. As we were unable to resolve the complaint, we advised the woman of her right to lodge a complaint in the Human Rights Review Tribunal.