1 Feb 2007, 09:00

A woman applied for a job with a different branch of the government department that she worked for. Her application was unsuccessful. There were two aspects to her complaint.

Unauthorised reference

First, when she spoke to the person who interviewed her, she discovered that he had contacted a former manager for a reference, and the manager had provided information about her. This manager was not one of her nominated referees. The woman stated that the manager was not qualified to provide a reference as she had not been working with him for a significant period of time.

This aspect of the woman's complaint raised issues under principle 2 of the Act. Principle 2 provides that information must be collected from the person concerned unless one of the exceptions applies.

My investigations revealed that it was the department's policy to obtain written authorisation from the applicant before contacting referees. I was satisfied in this case that the woman had not given written authorisation for her manager to be contacted.

The department argued that it was entitled to collect the information as part of an "intra-organisational transfer" and that therefore principle 2 did not apply. It sought to rely on the Tribunal case of KEH and PH v Chief Executive Department of Work and Income (19 December 2000) CRT 36/00, Decision No 40/2000, which held that officers of the agency could not be seen as separate from the agency. It argued that there is no collection of information when the information is passed from one employee to another.

I was satisfied that the case of KEH was distinguishable from the situation here. The KEH case related to disclosure of information, in the form of casual gossip between employees. This is different from the structured, formal process of collection in regard to a job application that took place here. It was my opinion that internal candidates for a job are entitled to the same level of privacy protection as external candidates, and that collection of information from referees should therefore be authorised in the usual way. The definition of "collection" in section 2 simply excludes the receipt of unsolicited information. The information was clearly solicited here.

Since no other exception applied, I therefore reached the view that the department's actions had breached principle 2.

However, there was insufficient evidence to show that the woman had suffered any harm as a result of the unauthorised reference. I therefore concluded that, in these circumstances, there had been no interference with the complainant's privacy as a result of the breach of principle 2.

Access to information - evaluative material

Secondly, the woman had requested access to the reference and to her psychometric test results. The department refused to provide her with this information on the basis that it was evaluative material under section 29(1)(b).

I was satisfied that the reference provided by the manager was evaluative material, the disclosure of which would breach an express promise of confidentiality that the interviewer had made to the manager. I therefore concluded that the department could withhold this information, although I acknowledged that it is frustrating not to know the contents of a reference.

The department confirmed that the personal information from the psychometric test had been provided through an agreement with the company that carried out the testing. The agreement contained a promise of confidentiality. I therefore concluded that the department had not breached principle 6 by withholding this information as this, too, was evaluative material supplied in confidence. The department invited the woman to meet with it, however, so that she could receive verbal advice about the results of the psychometric test.

I believed that this was a helpful approach, designed to give her the feedback that she needed.

I advised the woman that the department had not breached principle 6 by withholding the material. I also advised her that, while the department had breached principle 2, there was no interference with her privacy in these circumstances. I then closed my file.

March 2007

Collection of personal information - employer - transfer within the agency - unauthorised reference obtained from complainant's manager - principle 2(2)(b); section 2 "collection", section 66(1)(b), Privacy Act 1993

Access to personal information - employer - access to results of psychometric testing - access to information in reference - refusal - evaluative material-  section 29(1)(b) Privacy Act 1993