A recent decision of the Human Rights Review Tribunal contains significant developments for employers over their obligations to withhold and disclose private information.
The decision, Waters v Alpine Energy Limited, has allowed an unsuccessful job candidate to view information regarding the recruitment process, including CV's of other candidates. This has caused a stir in the industry1.
Mr Waters (62) had applied for two positions with Alpine Energy, where he had previously worked for over 20 years. Both of Mr Waters' job applications were unsuccessful.
Mr Waters felt that he had been discriminated against due to his age, and accordingly commenced proceedings under the Human Rights Act 1993 alleging age discrimination.
Alpine Energy rejected his complaint and matters were proceeding to a hearing when an issue arose regarding the disclosure of evidence. In particular, Mr Waters sought information related to the candidates (including those that were successful), containing names, addresses, contact details, and other personal information including employment history, experience, and qualifications.
Alpine Energy refused to disclose certain documents on the basis that they were confidential information, not within the company's possession or control, or because the documents had already been destroyed.
The Tribunal has the power to regulate its own procedure however it sees fit, and has a broad discretion to receive any evidence that, in its opinion, would assist in dealing with the matter. However, the Evidence Act still applies to the Tribunal, under which the Court (or the Tribunal) can direct that confidential communication or information cannot be disclosed.
In this instance, the Tribunal ordered disclosure of the other candidates' information as there was a public interest in preventing discriminatory conduct being hidden behind the cloak of confidentiality. Accordingly, Alpine Energy was ordered to produce all of the information sought by Mr Waters, including the information held by the recruitment agency.
Interestingly, the Tribunal's order also prevented Alpine Energy from redacting the names of the other candidates, as the Tribunal felt the information would be difficult to manage without names.
The decision creates an interesting precedent for the treatment of confidential and personal information. The way through this issue is complex, and it would seem that the available options may differ depending on whether the applicant was successful (and therefore is an employee) or unsuccessful.
The decision does not specifically refer to the implications of the Privacy Act, under which personal information may be withheld. For example, an agency holding personal information about an individual is allowed to refuse to disclose information which is evaluative material, or if disclosure would involve the unwarranted disclosure of the affairs of another individual. Therefore, there is an unexamined tension between this decision (which is of authoritative value in the Employment Relations Authority), the provisions of the Privacy Act, and where appropriate, employer's "good faith" obligations under the Employment Relations Act.
The decision is likely to have wide-ranging implications for employers and appears to go further than the information disclosure requirements under the ERA and proposed amendment scheduled to be enacted later this year.
Accordingly, if you receive a request to disclose confidential information, we strongly recommend you, first, seek advice, to ensure that you are meeting your obligations under all relevant legislation.
1Water v Alpine Energy Limited  NZHRRT 8.