Employer examined as to information held in their mind…

The Privacy Commissioner has confirmed that information held in the mind of a person is information which must be released in response to a Privacy Act request.

In this case an employee had requested information about complaints laid against her by other staff and customers.  The employer had refused to disclose that information on the basis that it was not in written form, but only in his mind.  He also refused to release the information at the request of the employee’s lawyer. 

The employee complained to the Privacy Commissioner, who also requested the information from the employer and the employer refused to hand that information over.

The Privacy Commissioner therefore took the unusual step of requiring the employer to attend to be examined on oath.  The employer did attend and was examined by the Privacy Commissioner under oath.  The employer did disclose, when examined, that they held information and told the Privacy Commissioner what complaints had been received from other staff and customers.

The employee was therefore able to get the information as a result of the examination by the Privacy Commissioner.  Information held in the mind is just as disclosable as information held on paper or in another format.

The Privacy Commissioner was unable to resolve the issue of compensation for failure to hand over the information requested, so the employee is entitled to take their claim to the Human Rights Review Tribunal seeking damages.



Alan Knowsley
Privacy Lawyer
Wellington