Does the employer have to disclose who has made the notification?
Introduction
When dealing with a whistleblowing case, the person who is the subject of the notification often wants to receive as much information as possible about what the notification is about and who has made the notification. This information may be necessary in order to counter the notification and safeguard own interests. The whistleblower, on the other hand, often requests confidentiality. The employer is then faced with a difficult prioritization between the interests of the person who is the subject of the notification and the whistleblower.
Whether the identity of the whistleblower can and should be concealed depends on the specific situation and the stage of the whistleblowing case. There are different sets of rules that regulate the right of access while the employer is investigating the notification and during any subsequent legal proceedings. Traditionally, it has been assumed that the employer may have a certain right to withhold information at the investigation stage, while the person who is the subject of the notification’s right to information at the trial stage is very far-reaching.
However, a ruling from Borgarting Court of Appeal in a case against Det Norske Travselskap (LB-2023-67604) may indicate that the right of access at the trial stage is shorter than many have previously thought. The ruling is now legally binding, after the Supreme Court on August 9 denied the case. It is not inconceivable that the ruling may also have an impact on the right of access at the investigation stage and suggest a broader access to confidentiality there as well.
The investigation stage
While the employer is investigating a notification, the procedure is regulated by the whistleblowing rules in the Working Environment Act and the rules in the Personal Data Act/GDPR on the processing of personal data. The preparatory works to the Working Environment Act require that the whistleblower's identity should not be disclosed to a greater extent than necessary, but the Act does not contain a rule on confidentiality.
Article 15 of the GDPR, on the other hand, gives the right to access all available information about the origin of the personal data. The wording "all available information" indicates that the right of access is broad and also includes the identity of the person who has notified. The Data Protection Authority has therefore assumed that the main rule under the data protection rules is that the person who is subject of the notification has the right to know the identity of the whistleblower.
If the employer is to withhold information about the whistleblower's identity, this must be justified by one of the exceptions in the Personal Data Act or GDPR. Section 16 of the Act contains several possible exceptions. Among the most relevant are that the information is only contained in text prepared for internal case preparation (section 16, first paragraph, letter e) or that it would be contrary to obvious and fundamental private or public interests to provide access to the information (section 16, first paragraph, letter f).
The latter is the most generally formulated exception that the employer can invoke if the identity of the whistleblower is to be kept hidden for the sake of the working environment or the whistleblower himself. However, the Norwegian Data Protection Board has found that the threshold is high, and that there must be significantly more weighty interests than a general argument about protecting an informant in a labor dispute (PVN-2015-07 Tromsø Municipality).
The trial stage
In a court case, the clear starting point is that you have a duty to provide evidence that may be relevant to the case. As a general rule, the employer is therefore obliged to provide information about who has given notice if the person who is the subject of the notification demands it. The purpose of this rule is to provide the court with the best possible basis for rendering a materially correct judgment in the case.
Neither the Working Environment Act nor the data protection rules provide a basis for withholding evidence in a court case. On the other hand, the Dispute Act contains its own, narrow exceptions to the obligation to present evidence. One of these is section 22-9, third paragraph of the Dispute Act. This provision allows for exemption from the obligation to present evidence if there is a risk of significant loss of social reputation or significant loss of welfare of another kind. It is also a condition that it would be unreasonable to order access to the evidence based on an assessment of the nature of the case, the importance of the evidence for the clarification of the case and other circumstances. The rule is similar to the exception in section 16, first paragraph (f) of the Personal Data Act regarding obvious and fundamental interests but has a narrower scope of application.
The notification case in Det Norske Travselskap
The case that has now been denied before the Supreme Court sheds light on the scope of the exception in section 22-9, third paragraph of the Dispute Act. The case originated in a whistleblowing case in Det Norske Travselskap, where several reports of concern were made about the behavior of a key person in the trotting environment. In the wake of the whistleblowing case, the person who was the subject of the notification filed a lawsuit claiming damages. He referred to the content of the reports of concern and the way they were handled by Det Norske Travselskap, which resulted in the whistleblower being removed from a board position. He considered this to be a defamation that formed the basis for compensation.
The person who was the subject of the notification demanded information about the identity of the whistleblowers and specifically what they had reported. However, Det Norske Travselskap refused to comply with the request in order to protect the whistleblowers and the working environment. They referred to the rules in the Working Environment Act, and that several of the whistleblowers had been promised confidentiality.
Since the case was at the trial stage, the Court of Appeal had to decide the question based on the rules of evidence in the Dispute Act. The court found that neither the Working Environment Act nor confidentiality agreements in themselves provide exceptions to the main rule on access to evidence. The court then considered whether it was possible to make an exception under the rule in section 22-9 of the Dispute Act on exemption from evidence in the event of a risk of significant loss of social reputation or significant loss of welfare of another kind.
The Court of Appeal referred to the need to ensure genuine whistleblower protection and was of the opinion that it could have serious consequences for the relationship with the whistleblowers if the person who was subject of the notification gained access to information about the identity of the whistleblowers. As the rules on defamation are formulated, the Court of Appeal was also of the opinion that it would primarily be in the interest of Det Norske Travselskap - and not the person who was the subject of notification - that the evidence was produced. Thus, the Court of Appeal concluded that the conditions for exemption of evidence were met.
The Borgarting ruling is interesting for at least two reasons: Firstly, because it concerns the trial stage, where it is assumed that the right of access and the right to be heard are greatest. The coherence of the rules then indicates that access to confidentiality will normally be at least as far-reaching at the investigation stage. Secondly, because the Court of Appeal emphasized that it was the employer and not the person who was subject of the notification who had the primary interest in the evidence being recorded. With this viewpoint, it is the court and not the person who is subject of the notification who assesses whether the information can be used to his/her advantage. It is debatable whether this is a real form of adversarial process.
The scope of the decision outside the trial stage is still uncertain. However, the ruling may indicate that case law may expand the employer's right to withhold information about the whistleblower's identity to a greater extent than has been the case so far based on other sources of law.
