The Privacy Commissioner has recently released guidance on a complainant

Wednesday, February 5, 2020

The Privacy Commissioner has recently released guidance on a complainant’s right to information in workplace bullying matters. Individuals are entitled to access information about them held by agencies under Principle 6 of the Privacy Act, including evidence and findings compiled from a workplace bullying investigation. Employers can refuse such requests under section 29(1)(a) if they believe the disclosure of such information would be an “unwarranted disclosure of another person’s affairs given the circumstances.” The Commissioner noted that concerns about employees publishing the information given, “either on social media or through a media organisation” is not a legitimate reason for refusal. If employers are worried about such issues, the Commissioner noted that they may be entitled to offer a “limited viewing” of the information instead or to release the investigation report with conditions. The Commissioner concluded that “from a natural justice perspective” a complainant of workplace bullying is “entitled to see the results of the workplace investigation…including statements their managers, co-workers or alleged bullies have made about them.”

Despite this, the Commissioner did recognise that there are limited circumstances where an employer can justifiably withhold information relating to “internal bullying investigations.” Such cases would have to rely on section 29(1)(b) of the Privacy Act where a disclosure would break an “express or implied” non-disclosure promise to another employee. However the Commissioner noted that only “evaluative material” (which is an assessment or opinion information) “that is compiled solely for a particular employment purpose such as to determine someone’s suitability for a job” is covered under this section. A report collected for the purpose of investigating a bullying complaint would not meet this requirement. The Commissioner highlighted Watson v Capital & Coast District Health Board [2015] as a recent Human Rights Tribunal case where the CCDHB’s refusal to “disclose personal information contained in [Ms Watson’s] alleged bully’s response to her bullying complaint and the interview notesas an interference with Ms Watson’s privacy. The Commissioner recommended that employers should set “clear terms of reference about who will get access to the final report and when”, when conducting internal bullying investigations.

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Disclaimer: the content of this article is general in nature and not intended as a substitute for specific professional advice on any matter and should not be relied upon for that purpose.

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