Privacy and the statutory incorporation thereof into the Dutch Personal Data Protection Act (Wet Bescherming Persoonsgegevens or ‘Wbp’) are receiving more and more attention. Employees are ‘discovering’ the right of inspection pursuant to Section 35 Wbp. This Section provides the right to inspect personnel files, but it is also evident from case law that it is a stepping stone to issue copies (i.a. Supreme Court 29 June 2007, National Case-Law Number AZ 4663). To what extent does the right of inspection apply?
An interesting ruling of theAmsterdamCourt of Appeal was published at the start of January 2012 (5 July 2011, National Case-Law Number BR3020). A female employee demanded full right of inspection of her personnel file. This demand went rather far and was logically opposed by the employer. In this case, inspection of the following was demanded:
1. The correspondence between the Labour Affairs/Legal department and other departments of the employer.
2. The details that were intentionally not issued by the employer, such as e-mail correspondence:
• relating to internal applications; and
• of the employer with the (then) Management Board, including the correspondence between the (then) chairperson of the Central Works Council and one or more members of the (then) Management Board.
In other words, it also explicitly concerned communication between the Legal department and the lawyer of the employer. In respect of the communication with the lawyer, the female employee argued that the employer could not invoke the confidentiality clause, because the lawyer in the present case had been seconded to the employer. The employer refused to issue the correspondence between the Labour Affairs department and the other departments with regard to the labour dispute with Van Schaik, an e-mail of the chairperson of the Works Council to the (then) Management Board, and correspondence between the lawyer and the Legal/Labour Affairs department.
The Court of Appeal considered that pursuant to Section 35 Wbp ‘the party involved’ had the right to apply freely and at reasonable intervals to his ‘superior’ with the request to inform him whether relevant personal details relating to him were being processed. Translated to Dutch labour law, this means that the employee may regularly enquire after the processing of details in his personnel file. The employer will make it known within four weeks whether personal details relating to him are being processed. If that is the case, the employer will furnish him with a complete summary thereof in an understandable format, a description of the object or the purposes of the processing of such details, the categories of details to which the processing relates, and the recipients or categories of recipients thereof, as well as the available information on the origin of the details.
The right of inspection pursuant to Section 35 Wbp does, however, have its restrictions and is therefore not unlimited in scope. For instance, it follows from case law (1) that the right of inspection does not extend to internal notes containing personal thoughts of employees and that are solely intended for internal consultation and consideration. A final report eventually drawn up on the basis of internal notes does, however, fall under this right. The details that the female employee requested qualified, according to the Court of Appeal, as correspondence between employees of the employer and contained personal thoughts, solely intended for internal consultation and consideration. This does not fall under the right of inspection, thus the opinion of the Court of Appeal.
It is striking that the Court of Appeal in this case does not address Section 43 Wbp, but is satisfied with the observation that personal notes do not fall under the right of inspection. As Section 43 Wbp provides for an exemption from the right of inspection, the employer also appealed on the basis of this Section in this case. One of the reasons for Section 43 Wbp is “the protection of the parties involved or of the rights and freedoms of others”. The term “others” can also mean the party responsible within the meaning of Wbp – and therefore the employer in labour relations.
(1) Supreme Court 29 June 2007, National Case-Law Number AZ4663; Supreme Court 29 June 2007, National Case-Law Number AZ4664; Supreme Court 29 June 2007, National Case-Law Number BA3529; Supreme Court 24 January 2003, National Case-Law Number AF0148