The Office of the Privacy Commissioner has issued advice(1) on rights to access information during the investigation of bullying in the workplace.
It says in recent months the Office has investigated multiple complaints related to workplace bullying. In each of these instances, complainants wanted access to information about their bullying investigation that for one reason or another, the workplace decided to withhold.
“During a bullying investigation, an employer or external third-party may call in the employee, the reported bully or bullies and other employees, for interviews to ascertain the facts and decide whether disciplinary actions should be taken.
“The employer may produce a report summarising the interviews and making note of any disciplinary actions taken. Investigation terms of reference will generally offer all parties to the complaint the chance to see a copy of the report, which may include statements from parties describing the alleged events.”
Unjustified reasons for withholding information
The Office says Principle 6 of the Privacy Act 1993(2) gives individuals the right to access information that agencies hold about them. When a complainant seeks information relating to their bullying investigation, the employer may wish to withhold information. Some reasons for withholding are legitimate, others are not, it says.
“In some cases we have seen, agencies withheld an investigation report from a complainant, even though it contained the complainant’s personal information and the terms of reference said they could receive a copy.
“Under section 29(1)(a)(3) of the Privacy Act employers must balance the privacy interests of the person seeking the information against the interests of other people involved. They must determine whether disclosure of that information would be an unwarranted disclosure of another person’s affairs given the circumstances.”
Sometimes employers are concerned that employees may publish the material, either on social media or through a media organisation, the Office says. “This is not a legitimate reason for withholding private information under the Privacy Act. If the employer is worried about the disclosure of other people’s information to the media (thereby breaching those peoples’ privacy), they are entitled, in some cases, to offer a limited viewing of the information, or release of the report with conditions.
“From a natural justice perspective, people who make complaints of workplace bullying should be entitled to see the results of the workplace investigation often – including statements their managers, co-workers or alleged bullies have made about them.”
Limited reasons where it is justifiable to withhold
In some circumstances, employers may be justified to refuse requests for information relating to internal bullying investigations, the Office says.
“Section29(1)(b)(3) of the Privacy Act says agencies may refuse to disclose any information requested ‘if the disclosure of the information or of information identifying the person who supplied it, being evaluative material, would breach an express or implied promise’. In other words, if the employer tells an employee that they won’t share their statement with other parties, that can be honoured.”
It says evaluative material is assessment or opinion information that is compiled solely for a particular employment purpose such as to determine someone’s suitability for a job.
“In one case we investigated, we found that the investigation report for bullying could not be withheld under section 29(1)(b) as the report did not meet the ‘compiled solely’ test. The report was collected to investigate a bullying complaint, and not solely to determine whether the alleged bully should continue to be employed.”