1. Brief overview of the case

In May 2022, a professor at a university institute (“Institute”) requested an extension of his employment until December 31, 2023. At the same time, the foundation board had commissioned an internal investigation into the work environment of the professor’s department and informed him that it would make its decision on the contract extension contingent on a positive investigation report.

The investigator interviewed the professor along with other professors and staff members; the Institute afforded interviewees anonymity and confidentiality. After the investigator submitted the investigation report on September 15, 2022, the Institute did not renew the professor’s contract.

After the Institute refused to disclose the investigation report, the professor filed a lawsuit with the Geneva Labor Court seeking the disclosure of all data the Institute processed about him, including a copy of the investigation report. The court ordered the Institute to disclose certain parts of the report. Upon an appeal of the Institute, the Geneva High Court reduced the scope of this claim. The professor filed an appeal with the Federal Supreme Court, demanding the disclosure of the full report.

2. Decision of the Federal Supreme Court

a) No inspection of the investigation report during the proceedings

The appellant first alleged a violation of the principle of equality of arms and the right to be heard (Art. 29 of the Federal Constitution; Arts. 53 and 156 of the Civil Procedure Code), arguing that the court should have disclosed the investigation report to him during the court proceedings.

The Federal Supreme Court rejected these arguments, explaining that:

• Provisional access to the investigation report would, in effect, preempt the outcome of the relief sought, namely disclosure of the report, thereby rendering the proceedings moot.
• A redacted disclosure is not permissible, as it would require the court to first decide what to redact – effectively pre-empting the substantive data classification (identifying and redacting personal data) reserved for the decision on the merits.
• The inspection by the professor's counsel, subject to a duty of confidentiality vis-à-vis his own client, is not realistic and therefore not a suitable compromise.

The Federal Supreme Court thus concludes that the investigation report must not be made available through procedural disclosure rules during the ongoing proceedings, not even in a partially redacted form (considerations 3.1. and 3.2.).

b) Right to information only regarding one’s own personal data

On the merits, the Federal Supreme Court confirms that, pursuant to Art. 25 et seqq. of the Data Protection Act ("FADP") (which applies in conjunction with Art. 328b of the Swiss Code of Obligations (CO)), there is a right to information regarding one’s own personal data. However, it also clarifies that the data subject must be identified or identifiable (Art. 5(a) FADP). If this is not the case, the FADP does not grant a right to access other information contained in the investigation report.

Based on these grounds, the Federal Supreme Court confirms the reasoning of the lower court:

• Part I of the report (describing the mandate of the investigator): Access is granted because the data subject has the right to know the purpose of the processing (Art. 25(2)(c) FADP).
• Parts II and III (methodology and chronology of the investigation): Access refused. During his own interview, the investigator sufficiently informed the professor about the methodology. Details regarding the chronology, such as the number of interviews and the period during which they took place, do not contain any personal data pertaining to the professor.

The Federal Supreme Court thus holds that information regarding the methodology and course of an investigation is, in principle, not covered by the right to information (consideration 4.3.1.).

c) No right to information regarding third-party data

The Federal Supreme Court holds that the right to information under Art. 25 et seqq. FADP does not extend to third-party data. If the investigation report contains information in which third-party data inextricably intertwines with the appellant’s personal data, the court must balance the competing interests within the meaning of Art. 26 FADP.

In the case at hand, the court concluded that Parts IV and V (interviews and analysis) of the investigation report contain personal data of the professor and the interviewed employees. The court must therefore balance the interests under Art. 26 FADP for the sections concerning the professor.

In the Federal Supreme Court's view, this balancing of interests favors the employees’ interests:

• In the present case, the employer guaranteed the employees anonymity prior to conducting the interviews (confidentiality undertaking). The employees’ interest in keeping their participation and statements confidential outweighs the professor’s interest in learning the opinions expressed about him.
• Simply redacting the names is not sufficient: In a department with approximately fifteen people, the professor, who had been working there for many years, would very likely have been able to attribute individual statements to specific individuals.

The refusal to disclose Parts IV and V of the investigation report was therefore proportionate (consideration 4.3.2.).

d) Limited right to information regarding the conclusion of an investigation report

Regarding Part VI (Summary and Conclusion) of the investigation report, the Federal Supreme Court reiterates that the Institute must disclose only those sections that mention the professor by name or otherwise identify him. Phrases such as “the professors” (“des professeurs”) or “certain professors” (“certains professeurs”) do not meet this criterion; they do not contain any personal data of the professor within the meaning of Art. 5(a) FADP.

Furthermore, the fact that the conclusion was subsequently disclosed to him, even though he is not mentioned by name therein, does not give rise to a right to access the entirety of Part VI.

3. Conclusion and practical implications for internal investigations

The Federal Supreme Court dismissed the professor’s appeal.

The decision upholds previous case law (BGE 141 III 119) under the revised FADP and has significant practical implications for internal investigations:

• No right to inspect the files: The court does not disclose the investigation report during court proceedings through the corresponding procedural rules, not even in a partially redacted form.
• Only a limited right to information: Data subjects may request only those sections of the investigation report that identify them as individuals, and then only absent conflicting third-party interests.
• Confidentiality undertakings prevail: The Federal Supreme Court takes confidentiality undertakings given to interviewees into account when weighing the competing interests.
• Risk of identification: In small teams where there is a high risk of identification, FDPA permits only a complete refusal to disclose third-party statements. Simply redacting names is not a suitable compromise.
• Structure investigation reports: A clear separation of the mandate, methodology, statements, analysis, and synthesis significantly facilitates subsequent data classification.

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Note: The Federal Supreme Court intends the decision for official publication.