In IV proceedings, the complainant’s entitlement to benefits was denied. In the proceedings before the Federal Supreme Court, the complainant claimed that her right to be heard and the principles of equality of arms and transparency had been formally violated because the Zurich Social Insurance Court had not complied with her request for the test results to be released. The expert body had refused to disclose the results because there was a fear of uncontrolled dissemination, which would render the test procedures useless. The Federal Supreme Court has consistently upheld this argument.
In the present case, however, the complainant had also based the claim for surrender on the right to information under data protection law. The Federal Supreme Court rejects this claim in the present case (Judgment 8C_723/2022) and confirms BGE 140 V 464:
5.3 From the perspective of data protection law, a claim for surrender only to the extent that it complies with the relevant statutory objectives. The right to information under aArt. 8 of the Federal Act of 19 June 1992 on Data Protection (new: Art. 25 of the Federal Act of 25 September 2020 on Data Protection […]) is intended to enable the person concerned to exercise their other data protection rights (BGE 140 V 464 E. 4.2; 139 V 492 E. 3.2; each with references). According to her own statements, the complainant intends to use the complaint validation data to prove that she is “in fact, as stated by her (treating) doctors, massively restricted in her ability to work”. The sole purpose of her request is therefore to pursue or Enforcement of a claim under social security law is the basis. Since this objective is clearly not in line with that of the FADP (see also: Art. 26 para. 1 lit. c FADP), it is out of the question to invoke the right to information under data protection law. The passages quoted in the complaint from the guidelines of the Federal Data Protection and Information Commissioner (FDPIC) for the processing of personal data in the medical sector of July 2002 do not change this, insofar as they are at all binding in the context of interest here.
In doing so, the Federal Supreme Court also confirms that the abuse of law of a request for information – e.g. due to improper use to be taken into account ex officio is. In any event, the question of whether the testing procedures should be disclosed was deemed irrelevant by the lower court and it does not appear that an abuse of rights objection was raised.
When applying the prohibition of abuse of rights, it is up to the parties to assert and, if necessary, prove the relevant facts (unless the principle of investigation applies); however, if the facts established show an abuse of rights, this must be taken into account ex officio. See Hausheer/Jaun, SHK introductory article, Art. 2 N 91:
Art. 2 para. 2 ZGB is objectively mandatory law. It obliges the judge to take abusive conduct into account ex officio “if the factual requirements have been presented by a party in the manner prescribed by procedural law and have been established”. The principle of “iura novit curia” applies; a special plea or objection is not required.