John Edwards: Candidate confidentiality still holds, with rare exceptions

John Edwards says 'bear in mind that in the vast majority of employment and recruitment situations, this scenario is extremely unlikely to apply.' Photo / Thinkstock

Should employers keep unsuccessful job candidates' details private? Can they? A recent case highlighted by the Herald might have left doubt in some minds. I want to make it clear that in my view, the answer to both questions remains "Yes".

In its decision in Waters v Alpine Energy, the Human Rights Review Tribunal ordered an employer to disclose details of other job applicants to an unsuccessful candidate challenging his rejection. While I agree with the editorial writer that it is a noteworthy case, I am not so sure that the "chilling effect" of the decision on employers and candidates will be pronounced.

In that case, Kevin Waters alleged he was discriminated against on the basis of his age and argued that it was relevant to his case that he should be able to see some information about the other candidates.

Most people enter into a job application process in the expectation that their personal details will be kept in confidence, and the Privacy Act requires that that confidence is maintained.

After looking closely at the tribunal's decision, I think it is important to reassure employers and candidates that it is my expectation that under the Privacy Act the details of applicants should not generally be disclosed to unsuccessful candidates.

As part of his age discrimination case, Mr Waters sought discovery orders from the tribunal. Discovery is the legal process by which parties to a dispute before a judicial body exchange information that is relevant to the outcome of a case.

Under the Evidence Act, there are very limited grounds to refuse to provide the information. These grounds include "privileges" such as communications between doctors and patients, lawyers and clients, priests and penitents, and other material obtained in confidence. These privileges are narrowly construed.

The tribunal heard submissions that the details of the unsuccessful applicants should be included in the "in confidence" exception to discovery but the tribunal decided the information was relevant to the proceeding.

The tribunal also said Alpine Energy's concerns for the privacy of the other individuals were adequately addressed by a High Court rule that says "a party who obtains a document by way of inspection ... may use that document only for the purposes of the proceeding". The tribunal then ordered that some documents (with some personal information removed) be disclosed to Mr Waters. That order meant that disclosure would not be a breach of the Privacy Act.

Here then is what we are left with:
*Employers' first duty is to maintain privacy of the candidates' details. Giving out candidates' details is still highly likely to be a breach of the Privacy Act.
*If an unsuccessful candidate obtains an order from a judicial authority, in the course of suing the employer, the duty to have full information available to the parties and to the court might override the privacy obligations.
*A party getting access to that information in those circumstances can use it only for the purposes of the proceedings.

Job candidates and employers would do well to take note of the decision but bear in mind that in the vast majority of employment and recruitment situations, this scenario is extremely unlikely to apply.

While the case upheld the right of one unsuccessful applicant to access information about the other candidates, it did so requiring a very high legal threshold to be achieved for other cases to succeed. Employers and job applicants need not be alarmed.

John Edwards is the Privacy Commissioner.