The Administrative Court of the Canton of Zurich has protected a decision of the District School Board B of the City of Zurich (Judgment VB.2019.00153 dated September 12, 2019, involving a father’s inspection of an email sent by the mother to the school. In apparently highly contentious circumstances, the father had wanted to know whether an invitation from the school to separate parent meetings was based on a request from the child’s mother. The district school administration had refused this access – and rightly so, says the Administrative Court of the Canton of Zurich: the Elementary School Act does not provide for this claim, and the Cantonal Information and Data Protection Act (IDG) is not applicable; but even according to IDG, this information would have to be refused.
Interesting is the remark (obiter, but still) that the request for information would have been abusive at best:
It should be noted that in the present case it also appears questionable whether the complainant’s request for inspection should not have been deemed to be an abuse of rights. In view of the undisputedly long-standing and obviously profound conflict between the complainant and C, it appears that the request for access should not have been considered an abuse of rights. it is at least very questionable whether the purpose of his request is actually to make information about an official activity available or whether his request serves the purposes pursued by the IDG. (cf. Section 1 (2) IDG).
As is well known, the Federal Supreme Court takes a hard line (under the DPA) regarding requests for information, but has left the door open to the objection of abuse of rights (BGE 138 III 425 E. 5.5):
Thus, abuse of rights is considered if the right to information is too purposes contrary to data protection is used, for example to save the costs of a data acquisition, which would otherwise have to be paid […]. One can also think of a harassing Exercise of rights without a real interest in the information, merely to make the party required to provide information damage […]. An improper use of the right to information under data protection law and thus an abuse of rights would probably also be assumed if the request for information were to only is made for the purpose of finding out the (later) counterparty and Obtain evidence that a party could not otherwise obtain. Because the right to information according to Art. 8 DSG Does not seek to facilitate the obtaining of evidence or to interfere with the law of civil procedure
Since then, this case law has often been taken up, but not substantiated.
With the revised DPA, the issue is likely to become less important insofar as a Refusal to provide information due to own overriding interests of the controller should also become possible if the controller discloses the applicant’s personal data to third parties (at least according to the National Council; however, given the high political pressure on the Council of States against the backdrop of the EU Commission’s adequacy review, it is unlikely that the Council of States will deviate on this point).