Posted on: Aug 26, 2013
A man applied for a job in a government department. As part of the application process the department used a company which specialised in pre-employment screening of potential employees. The man was unsuccessful in his application, and made a request under principle 6 of the Privacy Act for the personal information held by the government agency in relation to his application. Some information was provided, but some was withheld under section 29(1)(b) of the Privacy Act.
The man complained to the Privacy Commission about the information that had been withheld. He also complained about some of the information that had been collected and retained about him by the pre-screening company.
The Commissioner investigated the complaint as one raising issues under principles 1, 6 and 9 of the Privacy Act.
Government department responsible for actions of pre-screening company
The department was responsible for the actions of the pre-screening company which had collected the information about the man. The pre-screening company was acting on the department’s behalf.
Principle 1
Principle 1 provides that an agency must not collect personal information unless it is collected for a lawful purpose connected with an activity of the agency and the collection is necessary for that purpose.
In this case information had been collected about the man’s personal and commercial credit history. The position he had applied for was not one in which there was significant financial risk to the department. The Commissioner did not consider that the department needed to collect this information about the man in order to determine whether he was suitable for the job, and that in doing so it had breached principle 1.
The department accepted this, and apologised to the man for collecting this information.
Principle 6
Principle 6 provides that an individual has a right of access to the personal information that an agency holds about them, unless one of the stated exceptions applied.
The man had requested copies of the reference checks carried out on him. The department had refused on the basis that the exception at section 29(1)(b) applied.
Section 29(1)(b) allows an agency to withhold personal information that is evaluative material where releasing it would breach an express or implied promise made to the person who supplied it that the information or their identity would be held in confidence.
“Evaluative material” is defined in section 29(3) as including evaluative or opinion material compiled solely for the purpose of determining an individual’s suitability for employment.
The Commissioner was satisfied that the department had a proper basis to withhold the information as the references had been provided in confidence and releasing them would breach that confidence.
Principle 9
Principle 9 provides that an agency that holds personal information shall not keep that information for longer than is required for the purposes for which the information may lawfully be used.
The form that the pre-screening company used to collect information about potential employees stated that all the information collected would be retained indefinitely by the pre-screening company, and would form part of its own database for the purpose of determining that person’s suitability for any position they apply for in the future.
The Commissioner did not consider that this practice accorded with principle 9. In their view, principle 9 is incompatible with indefinite retention. The Commissioner advised the department of this, and it accepted this point. It instructed the pre-screening company to destroy the information it held about the man. This is all the man wanted to achieve and he wanted us to close the file.
Conclusion
The man accepted that he could not get access to the information withheld under section 29(1)(b). He advised that he was satisfied with the outcome in relation to the principle 1 and 9 issues, and the file was closed.
Case Note 218236 [2011] NZ Priv Cmr 4
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