The Federal Supreme Court has ruled in the Decision 4A_125/2020 (intended for official publication) with interesting considerations with the Subject of the right to information and took a more restrictive stance than the higher court of Zurich as the lower court in the Judgment of January 30, 2020 (Business No. PP190037‑O/U).. This is the second decision of the BGer in short successionwhich restricts the right to information or, in any case, does not extend it in this case, even if this does not necessarily indicate a general trend.
Background of the dispute
The background is a dispute between a law firm and a former partner who had been charged with aiding and abetting tax crimes in the USA and subsequently expelled from the firm (one may speculate as to whom). Subsequently, the party and the ex-partner had a dispute about benefits, probably outstanding balances and profit shares, which was settled with a payment of CHF 566,000 to the ex-partner. The partner then found himself on the list of undesirable customers at his bank – to which the payment in question had also been transferred – whereupon the bank terminated the contractual relationship.
According to the bank, this was due to the fact that, following a settlement with the U.S. authorities in its own tax proceedings, it had a policy not to maintain any relations with persons indicted in the United States. According to the (ex-)partner, however, another partner of the law firm informed the bank’s general counsel that there was a relationship between the bank and the excluded ex-partner, that the ex-partner was indicted in the U.S. and that the bank was advised to terminate this relationship.
Subsequently, the ex-partner sued the bank before the District Court of Zurich for information pursuant to Art. 8 DPA. The BGZ subsequently issued an evidentiary ruling, inter alia, regarding the ex-partner’s assertion that the partner of the law firm had informed the bank as stated. The bank appealed against this evidentiary ruling to the Supreme Court, which dismissed the appeal.
Entry question: irreparable disadvantage in case of interlocutory decision on evidence in case of substantive information claims
The Federal Supreme Court accepts the appeal against this decision. The Decision of the Supreme Court was – since it dismissed an appeal against an interim decision – itself an interim decision. This was in the sense of BGG 93 para. 1 lit. a likely to cause an irreparable prejudice:
- Evidence cannot serve as an instrument for obtaining informationbut are a means of collecting evidence. In disputes about substantive claims for information, however, there is a risk that the evidence procedure could be misused to enforce claims without examining the preconditions for the claim.
- In addition, both the substantive claim to information under the DPA and the civil procedural claim to the taking of evidence are subject to the fact that these not be misused for the purpose of a proscribed investigation of evidence be allowed.
- Once information has been provided, it can no longer be reversed, which speaks for the assumption of irreparable disadvantage. If the defendant would indeed have to fulfill the claimed claim in the context of the acceptance of the evidence, the question could even arise whether the court has not already substantively decided on the matter under the guise of the evidence order and the decision would have to be qualified as an appealable final decision, which the BGer leaves open here, however.
Scope of the right to information
On the merits, it was then disputed whether the Supreme Court had misjudged the scope of the right to information under data protection law. In this case, the Federal Supreme Court assumed that the subject matter of the right to information is broad and, in particular, that not only on official, but also on other data collections refers. In addition, the Owner of the data collection is obliged to prove the truth and completeness of the informationThis may also include proof that certain further information is not available; the burden of proof for this is also on the holder, but the threshold of legal sufficiency of proof must be reasonably set and the claimant has an increased duty to cooperate in the presentation of evidence, namely by providing counter-evidence or at least by showing concrete evidence of the existence of further data.
It was also disputed whether there was an obligation to provide information about the data sources. The FADP provides for such an obligation if corresponding information is available; however, there is no obligation to store such information. In this context, the Supreme Court had stated the following (quote from the Judgment of the Supreme Court):
The origin information – in contrast to the personal data as such – can be present inside or outside the data collection (Rosenthal, loc. cit., Art. 8 N 13). This view is supported by the definition of the term “information” according to Art. 3 lit. a FADP. According to Rosenthal, this term refers to any type of information or statement of any content and form. Included are in particular structured information (e.g. a database with customer addresses, an accounting system with accounting records) as unstructured data (e.g., information in an essay or letter, or the content of a telephone conversation). The information carrier does not have to be a thing, the “storage” in the human memory is sufficient. ([…]). Indications that the term “indication” under Art. 8(2)(a) DPA is narrower than that under Art. 3(a) DPA arise neither from the materials ([…]) nor from the literature source cited by the defendants, where reference is made only to the necessity of the availability of indications of source (Huber, Die Teilrevision des Eidg. Datenschutzgesetzes, in: recht 2006, p. 210; Urk. 1 p. 8). Thus, indications of origin do not necessarily have to be contained in a data collection in order to justify an obligation to provide information.
The Federal Supreme Court counters this, arguing that the higher court had thus overstretched the right to information. First of all, this concerns the subject matter of the right to information. Only “data collections that exist in writing or ‘physically’ and can therefore be viewed objectively in the long term” are covered, but not data that can merely be retrieved from memory.:
3.4.1 […] Only personal data that are in a data collection […] must be communicated.
3.4.3 The formulation of the duties of the owner of the data collection in the law and the ordinance allows conclusions to be drawn about the scope of the right to information: The information is basically owed without any preconditions, without any proof of interest (BGE 141 III 119 E. 7.1.1 p. 127; 138 III 425 E. 5.5 p. 432; each with references). As a rule, they are to be provided free of charge and in writing. The fact that such a conditional and free right to information is provided for shows that the The legislator assumes that the provision of information is generally possible without great effort if the data collection is designed in accordance with the law and the ordinance (Art. 9 Para. 2 VDSG).. The duty to provide information relates to all data available in the data file, because in view of the definition of the data file and the duty to structure it in accordance with the requirements of Art. 9 Para. 2 VDSG, it must be assumed that the data can be objectively accessed and targeted access is possible (cf. E. 3.1.1 above), so that the information can generally be provided without major effort. Also in this context, the author cited by the lower court requires from the party obliged to provide information but not the execution of all technically possible data queries (ROSENTHAL, loc. cit., n. 15 to Art. 8 DSG with reference).
The modalities for providing information also suggest that the right to information under Art. 8 DPA primarily recorded data in writing: As a rule, the information must be provided in writing, in the form of a printout or photocopy (Art. 8 para. 5 FADP). […]. These modalities argue against the fact that the person requesting information can simply express a suspicion regarding the origin of information from a conversation and have this verified by questioning parties and witnesses. The right to information under data protection law does not cover a general right to find out by questioning parties and witnesses who, when and about what a personal conversation took place. Rather, it is clear from the legal regulation of the formalities for providing information that the legislator is concerned with recording data collections that exist in writing or “physically” and can therefore be viewed objectively in the long term, but not merely data that can be retrieved from memory.
The scope of the obligation to provide information on the available indications of origin was subsequently disputed. On the one hand, the Supreme Court held here that the this obligation relates not only to indications of source, which are themselves part of the data collection, but also to other indications of source. However, it subsequently restricts this range:
3.4.5 However, the legislator speaks of “available” indications of source (as also in the new Data Protection Act: Art. 25 para. 2 lit. e E‑DSG; BBl 2020 7651) and has made the right of access also in this respect in principle prerequisite and free of charge (Art. 8 (5) FADP). This speaks in favor of this, as does the link with the word including, that, as a rule, this information should also not lead to a significant additional burden on the party obliged to provide the information. Here, too, it is implicitly assumed that the owner of the data file, if he stores the origin information (which he is not obliged to do, however; see E. 3.2.1 above), can do so in such a way (Art. 9 (2) FADP) that the origin information is also objectively accessible and targeted access to it is possible, even if it is stored outside the actual data file.
With regard to indications of source, too, only accessible, specifically available data are covered by the right to information. Here too, therefore information contained only in memory not subject to the right to information:
3.4.6 Contrary to the opinion of the lower court information about the origin of data that may be stored in the brain among the ordinary memories of a person (and not, for example, memorized at the behest of the owner of the data collection) is not covered by the right of access. Because over such information the owner can of the data collection. Without making inquiries with the data subject, he cannot objectively know whether the origin information is still available at a given time. In the context of the unconditional obligation to provide information pursuant to Art. 8 FADP, it cannot be demanded of the data controller that it carry out clarifications in this regard for each request for information.. Since the information to be provided must be true and complete (see E. 3.1.2 above), he would be obliged to do so, even if the origin information is not of interest to the person entitled to the information. The fact that the origin of the data can be reconstructed in the course of appropriate investigations does not mean that this information is available within the meaning of Art. 8 Para. 2 lit. a FADP. If the controller of the data file is not required to store the origin information, he cannot be required under Art. 8 FADP to carry out searches for origin information that he has not stored..
The Federal Supreme Court therefore upholds the bank’s appeal because the disputed evidence concerned points that are not relevant to the proceedings against this background.