The Human Rights Review Tribunal (HRRT) has ordered a company to disclose to a failed job applicant the CVs and reference checks of other applicants for the same position. The HRRT applied general discovery rules to hold that the defendant in a human rights case (Alpine Energy) must make available to the complainant (the failed job applicant) information on other applicants.
The complainant had brought a claim under the Human Rights Act 1993, alleging that his application failed because of age discrimination. He applied for a discovery order for other applicants' information. The defendant invoked s 69 of the Evidence Act 2006 (which allows a court to exempt confidential information from discovery), but the HRRT rejected this argument. It ordered the defendant to make available other applicants' names, applications, CVs, references and security checks. Arguably, this order covers criminal records, debts, medical information, and work performance and behaviour issues.
The HRRT reasoned that:
- Confidential information is discoverable, subject to a court's discretion to withhold discovery where confidential relationships would be harmed. It is the public interest in retaining confidentiality that is relevant, not personal interests.
- No evidential foundation had been laid to show harm to confidential relationships would result from disclosure.
- If there were no disclosure, discriminatory conduct could be concealed behind a cloak of confidentiality.
The decision illustrates the importance of discovery, especially in anti-discrimination cases, and the power of the Courts (including HRRT) to expose individuals' personal information, even where this is otherwise prohibited by the Privacy Act 1993 and other privacy safeguards.
The decision of the HRRT can be found here.