The social security law department of the KGer BL has in a Judgment of July 28, 2022 (Business No. 715 21 112/174). decided that an unemployment fund at the Clarification of claims for unemployment benefits (ALE) is not entitled to consult files from an ALE dossier of the claimant’s mother.
In the present case, the unemployment insurance fund Baselland had submitted documents from the file of the claimant’s mother after a negative decision in the appeal proceedings before the KGer BL, in order to prove that in reality it was not the mother but her son who was running the company (which excluded a claim to ALE).
Art. 33 ATSG provides for a duty of confidentiality in a large part of social security law. Disclosure within this framework is only permitted on a legal basis unless an exception applies (e.g. consent). In the present case, however, there is no such basis because Art. 97a of the Unemployment Insurance Act (the parallel provision to Art. 84a KVG, for example) does not permit disclosure in this constellation.
Also Art. 32 ATSG was not applicable – although this provision provides that the administrative and judicial authorities of the Confederation and the cantons, among others, provide each other with administrative assistance, this, according to the KGer, only concerns data of the insured person and not of third parties:
Pursuant to Art. 32 para. 2 ATSG, the bodies of the individual social insurances provide each other with administrative assistance under the same conditions. Both the administrative assistance and the administrative assistance concern the disclosure of data of the insured person himself and not – as in the case to be assessed here – the disclosure of data of a third person.
The files submitted were thus illegally obtained evidencewhat the Question of their usability raised. However, there is no provision in the social security proceedings that would explicitly regulate this issue. The KGer therefore falls back on “general principles”:
It is therefore necessary to fall back on the general principles according to which, according to case law, there is a fundamental prohibition on the use of illegally obtained evidence. However, this prohibition is not absolute. Where, in the settlement, there are overriding interests in the enforcement of public law, evidence obtained unlawfully may also be used by way of exception.
In the present case, however, exploitation was out of the question because the data in question was Sensitive or worthy of special protection are:
In light of the above, the use of the illegally obtained evidence from the ALE file of E. [the mother] is out of the question in the present case. The personal data in question are sensitive information from the private sphere of the persons concerned, namely also for information about their Health status. Such data are nature worthy of special protectionIn the present case, this was done in the context of a balancing of interests – between the public interest in ascertaining the truth and E.’s interest in the non-disclosure of this data. to be weighted decisively in favor of the interest of the parties concerned is.