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.