Personal data: Comprehensive right to information of the employee - a threat to the anonymity of whistleblowers?
Update Compliance 6/2019
The Regional Labor Court (LAG) of Baden-Württemberg, in its ruling of December 20, 2018 (Ref. 17 Sat 11/18), granted an employee a comprehensive right to information against his employer with regard to all personal data collected about his person. The right to information was explicitly confirmed in relation to personal data resulting from internal investigations and data from potential whistleblowers. The general protection of whistleblowers' anonymity does not constitute an interest contradictory to the right to information of the employee concerned.
Facts of the case: The plaintiff worked in the legal department of a large global vehicle manufacturer. As a result of various disputes with the defendant employer and a termination of the employment relationship by the latter, the plaintiff filed an action with the LAG Baden-Württemberg for unfair dismissal. In this context, he also alleged that the defendant was obligated to notify him as an employee regarding all personal data about his person, including that of internal investigations. The background to this claim for information was a compliance check carried out on the plaintiff employee using the Group's whistleblower system, which according to the vehicle manufacturer revealed a rule violation by the employee.
In addition to Sec. 83 para. 1 (1) BetrVG [German Works Council Constitution Act], the plaintiff also based his request for information on Art. 15 para. 1 General Data Protection Regulation (GDPR), which came into force in 2018, and also requested the publication of copies of the personal data processed by the defendant in accordance with Art. 15 para. 3 GDPR. The latter was rejected by the defendant employer with reference to the protection of the legitimate interests of whistleblowers in remaining anonymous.
The ruling: The LAG Baden-Württemberg ruled in favor of the plaintiff. The employer processes personal data of the employee, so that the latter is entitled to the right to information under Sec. 83 para. 1 (1) BetrVG and Art. 15 para. 1 GDPR as well as the right to publication of a copy of the data under Art. 15 para. 3 GDPR. This included not only the possibility of accessing the personnel file, but also the comprehensive access to personal data from files relating to internal investigations based on the whistleblower systems.
The court further assumes that the claims in question in the stated case are not restricted by the legitimate interests of third parties. The threat to an ongoing internal investigation by the access was not present and not recognizable. The whistleblower's interests are also not being opposed to the right to information in the present case. In accordance with Sec 34 para. 1 in conjunction with Sec. 29 para. 1 (2) BDSG [German Federal Data Protection Act], the right to information does not exist, inter alia, in so far as the provision of information would reveal information that would have to be kept secret because of the overriding legitimate interests of a third party. In particular, the endangerment of internal investigations, the right of the whistleblower to data protection and thus the confidentiality of their identity, as well as the assurance of anonymity by the employer, would be recognized as conflicting interests of third parties.
However, the existence of a ground for secrecy according to the LAG does not necessarily result in the right to refuse the requested information. The mere general reference to the need for protection of whistleblowers as justification of a sufficient interest contradictory to the right to information is not sufficient. Moreover, in the present case it was not specifically stated as to which data was withdrawn as a result of the asserted contradictory third party protection of an information. The necessary balance of interests in the individual case, in the context of which the specific confidentiality interest of the third party is to be contrasted with the interest of the data subject, can not be made on this basis.
In addition, the defendant's assertion of the protection of the whistleblower's anonymity could also be ensured to the extent that such data would not be included in personnel files or personal files from internal investigations. The same effect could be achieved by (technical) blackening of corresponding data and passages. According to the LAG, if an employer fails to take such measures as are available to it, it could not refuse the employee concerned access to the data of the personnel file, with reference to the anonymization it has failed to make.
Practical notes: The GDPR poses new challenges for employers with employees' broad entitlement to information, which has also been upheld on appeal. The previously existing right to information was reinforced and expanded by the GDPR (in particular, the new Art 15 para. 3 GDPR) and the high sanction possibilities regulated therein. It should be noted that data obtained under a whistleblower system or in the course of internal investigations, including personal data of whistleblowers, must be disclosed to the employees concerned on the basis of the broad interpretation presented.
Whether, as can be read in numerous comments on the decision of the LAG Baden-Württemberg, indeed a "dramatic" increase in such procedures or the beginning of a "litigation wave" is to be expected, remains to be seen.
This is because employees' rights to information is not unlimited. Employers can refuse a claim to information asserted against them in the case of conflicting contradictory interests of third parties. In the case of personal data obtained through a whistleblower, the interest of the whistleblower as well as of the company in the confidentiality of personal data may well outweigh the right to information of the reported person. However, the conflicting interests must be adequately substantiated. The assertion of a mere general interest in secrecy by the employers subject to the burden of exposition should not suffice.
Whether and to what extent the presented right to information as well as the comprehensive right to information of the employee pursuant to Art. 14 GDPR is consistent with the idea of the general need for the protection of whistleblowers, which the current draft guideline on the protection of whistleblowers as well as the recently adopted GeschGehG [German Laws on Protection of Trade Secrets] (see Update Compliance 5/2019 and Update IP No. 13), will need to be judicially clarified after the implementation of whistleblower protection regulations.