datenrecht.ch

OGer TG (30.6.22): Right to infor­ma­ti­on – exclu­si­on in the case of pen­ding pro­ce­e­dings; requi­re­ments for sub­stan­tia­ti­on of the request for information

In a ruling dated June 30, 2022, the Hig­her Court of the Can­ton of Thur­gau dealt with the exclu­si­on of the right to infor­ma­ti­on in pen­ding civil pro­ce­e­dings pur­su­ant to Art. 2 Para. 2 lit. c of the FADP still in force (published in the Accoun­ta­bi­li­ty Report, RBOG 2022 [Swiss­lex]).

The lower court had pro­tec­ted the cla­im for infor­ma­ti­on on sala­ry data, insu­rance data, disci­pli­na­ry mea­su­res, cor­re­spon­dence, bonus agree­ments and app­raisals, alt­hough the request for infor­ma­ti­on had been made during pen­ding cri­mi­nal pro­ce­e­dings – in which the plain­ti­ff was a civil and cri­mi­nal plaintiff.

The Supre­me Court first reci­tes the rele­vant case law of the Fede­ral Supre­me Court and lite­ra­tu­re and con­clu­des that

on the one hand, the strict exclu­si­on of the DPA deman­ded by the appel­lant [pro­ves] to be untenable. Inde­ed, it does not make sen­se why, for exam­p­le, an employee should not be able to obtain data from his employer that he wants to use for a job appli­ca­ti­on becau­se a – pos­si­bly com­pli­ca­ted and leng­thy – lawsu­it is pen­ding bet­ween them. Rather, a deli­mi­ta­ti­on of the are­as of appli­ca­ti­on is necessary.

The lower court had not fai­led to reco­gnize this, but had trans­fer­red a cor­re­spon­ding exami­na­ti­on to the assess­ment of the pre­re­qui­si­tes for the cla­im and thus assu­med the con­tin­ued appli­ca­bi­li­ty of the DPA.

Nevert­hel­ess, the DSG remains

appli­ca­ble if the infor­ma­ti­on reque­sted is not clo­se­ly rela­ted to the sub­ject mat­ter of the pen­ding proceedings.

The “rela­tively recent” mes­sa­ge on the new DSG is hel­pful here:

The essen­ti­al deli­mi­ta­ti­on cri­ter­ion for the non-appli­ca­bi­li­ty of the DPA is […] whe­ther from a func­tion­al point of view, the­re is a direct con­nec­tion to a (court) pro­ce­e­ding exists or not.

In the pre­sent case, the files were of gre­at importance for sub­stan­tia­ting the alle­ga­ti­ons of the crime, which is why the­re was a clo­se con­nec­tion bet­ween the reque­sted data and the cri­mi­nal pro­ce­e­dings with the civil action. A “gene­ral, blan­ket request for infor­ma­ti­on” was not suf­fi­ci­ent if the reque­sted data were

poten­ti­al­ly rele­vant are for the […] pen­ding process […].

In such a situation

it is incum­bent upon the appel­lee entit­led to and reque­st­ing the infor­ma­ti­on, to sub­stan­tia­te which con­cre­te infor­ma­ti­on he is inte­re­sted in. For only and only when this is clear can the oppo­sing par­ty pre­sent its argu­ments against the pro­vi­si­on of infor­ma­ti­on in a con­cre­te and sub­stan­tia­ted man­ner (be it on the scope of appli­ca­ti­on, on the abu­se of rights or on the balan­cing of inte­rests). Other­wi­se, the appel­lant or, in gene­ral, any par­ty obli­ged to pro­vi­de infor­ma­ti­on would be forced to explain the con­nec­tion with the pen­ding pro­ce­e­dings for each indi­vi­du­al data tran­sac­tion con­cer­ning the appel­lee or the per­son reque­st­ing infor­ma­ti­on. This would be going too far, becau­se in this way the excep­tio­nal cir­cum­stance of Art. 2 (2) (c) FADP could ulti­m­ate­ly be under­mi­ned with a more or less gene­ral request for infor­ma­ti­on despi­te an obvious, fun­da­men­tal con­nec­tion bet­ween data and pen­ding proceedings.

In the pre­sent case, the request for infor­ma­ti­on was too gene­ral. The Supre­me Court nevert­hel­ess exami­ned which of the data are­as men­tio­ned remain­ed appli­ca­ble due to the lack of con­nec­tion with the pen­ding cri­mi­nal proceedings.

Aut­ho­ri­ty

Area

Topics

Rela­ted articles

Sub­scri­be