Access to Personal File

Legal Factors

Under the Privacy Act 2020 all employees have a right of access to any information about themselves held by their employer. Principle Six of the Privacy Act makes it clear that an employer with personal information that can be readily retrieved must allow individuals to confirm that they have a file, access it, check it and if the individual thinks necessary, request correction.

Automatic access by an employee to personal information does not apply if the information is so-called “evaluative material” which has been supplied by a third party (such as a consultant or solicitor) under a promise of confidentiality.

Obtaining Access

Access to personal files can be achieved by the individual visiting the appropriate office in person during normal office hours and asking to inspect their Personal File.

Personal Files can be inspected in the presence of the Privacy Officer or local manager within the office but cannot be removed. However copies of particular sections within the Personal File will be made on request.

An employee is entitled under Section 236 of the Employment Relations Act to delegate this right of inspection to a duly authorised employee representative. Management is entitled to seek verification of an employee representative’s authority to inspect before granting access to an employee’s Personal File.

Key Questions

The following questions and answers deal with six of the obvious issues:

Q.	What information can be kept on personal files?
A.	Basically, any information that is necessary for the orderly running of the business. Obvious examples are name, address, positions held, tax file number, emergency contact person, phone number etc plus work history information (promotions, pay rises, transfers, warnings, commendations and so on). However any such information must not be collected by unfair means (e.g. secretly bugging private phone calls) and should always be accurate, up-to-date, complete, relevant and not misleading. It should also only be held on file for as long as reasonably necessary to meet the purpose for which it was collected.
Q.	When may an employer refuse to disclose information?
A.	An employer may refuse disclosure for a variety of reasons, the most significant of which are if the disclosure would be likely to: Undermine the maintenance of law and order; including the prevention, investigation and detection of offences. Endanger the safety of any individual. Result in the disclosure of a trade secret. Affect unreasonably the commercial position of the person who supplied or was subject of the information. Involve the unwarranted disclosure of someone else's affairs. Involve evaluative material supplied in confidence by a third party (such as a consultant or solicitor) e.g. in the case of references where confidentiality has been requested or in the case of performance appraisals where the evaluative material is solely for the purpose of determining promotion, continuance or removal from employment Breach of legal professional privilege. An employer may also refuse a request where: The request for disclosure is vexatious or frivolous. The information is not readily retrievable or the information does not exist or cannot be found.
Q.	What right of access does an employee have to information on disciplinary matters?
A.	An employee has full access to notes of disciplinary interviews, warnings given and so forth - and is entitled to seek correction where such information is considered inaccurate. If a correction is refused, reasonable steps must be taken to ensure any employee statement about the correction sought is attached to the information, to be read together with it. The statement of correction should be forwarded to anyone else receiving the information.
Q.	Is an employee entitled to see their performance appraisal?
A.	Yes.
Q.	May an employee have access to references from third parties?
A.	There is no obligation on an employer to disclose the contents of a reference where the referee has requested that the information be kept confidential, although the employee must have consented, in advance, to that referee providing information about them.
Q.	May a former employer provide a prospective employer with a reference without the employee's consent?
A.	No - the general rule is that information on an employee must be collected directly from the employee, meaning the employee's permission will be needed before an ex-employer can provide a reference on that individual.