A year apart, the Federal Supreme Court handed down two judgments on the right of access and data protection in the context of an internal investigation, confirming that the right of access may be restricted.<\/p>\n\n\n\n
The first judgement, dated 1 May 2025 (ATF: 1C_375\/2024), concerns an associate Professor at the Faculty of Humanities at EPFL since 2012. In 2019, she applied for promotion, but her application was unsuccessful. She requested access to her file relating to her evaluation application. Her request was refused, but she was provided with \u201cinformation available on the origin of the data, the purpose and legal basis of the processing, the categories of data processed and of data subjects in the file, as well as the categories of data recipients\u201d<\/p>\n\n\n\n
Following appeals to EPFL\u2019s appeals body, the CRIEPF, and subsequently to the Federal Administrative Court (TAF), EPFL issued a new decision on 23 May 2024. Once again, EPFL restricts the right of access and, in particular, refuses to grant access to the professor\u2019s peer review. The professor appeals to the Federal Supreme Court against this decision.<\/p>\n\n\n\n
The Federal Court notes that it \u2018is undeniable that the appellant has a legitimate interest in being able to access her application file and understand the reasons leading to the refusal of her promotion\u2019. The Federal Court must therefore \u2018examine whether there is an overriding public or private interest\u00bb.<\/p>\n\n\n\n
The Federal Court points out that \u2018the promotion system established by EPFL is based on the method of collective assessment by researchers of the work of another researcher in the same scientific discipline (peer review). [\u2026] For the system to function properly, the identities of the experts and rapporteurs must be kept confidential in order to guarantee their complete independence. If their identities were known to the candidates, they might be tempted to draft their theses in such a way as to avoid any conflict of interest and would thus be unable to give their assessment in a fully objective manner. Without anonymity, there could also be a risk that the experts would simply refuse to give an opinion, making their selection more difficult\u201d.<\/p>\n\n\n\n
The Federal Supreme Court notes that \u2018those involved as rapporteurs in the candidate assessment procedure could reasonably expect that their assessments and statements would not be disclosed to the person concerned\u2019. The Federal Supreme Court therefore finds that the Federal Administrative Court \u201ccould, without infringing federal law, hold that the balancing of interests favoured, in this instance, the maintenance of confidentiality\u201d.<\/p>\n\n\n\n
As regards the question of whether a less drastic measure could have been ordered, the Court held that \u2018redacting the documents to remove only the experts\u2019 names would not, in fact, ensure the confidentiality of their identities, given that they disclosed the nature of their past or present professional relationships with the appellant, as well as their areas of expertise\u2019. \u2018Redacting the documents to remove only the experts\u2019 names would indeed be insufficient to keep their identities secret\u2019. The Federal Court therefore considers that \u2018the disputed documents could not have been subject to a less drastic measure than a complete refusal to disclose them. Under these circumstances, the refusal to grant access to the disputed documents complies with the principle of proportionality\u2019.<\/p>\n\n\n\n
The Federal Court therefore upholds the refusal to grant access to the peer review report and, on balance, considers that maintaining confidentiality takes precedence.<\/p>\n\n\n\n
The second judgement of 16 June 2026 (ATF: 4A_504\/2025) also concerns a professor, namely a full professor at the Graduate Institute of International and Development Studies (IHEID). He had held this post from 1992 to 2019, that is, until he reached the AVS retirement age. He had also served as head of department on two occasions during his career, for a total of eight years.<\/p>\n\n\n\n
This professor was granted an extension to his appointment as a professor for a period of three years following the AVS retirement age. In May 2022, he applied for a second renewal of his contract.<\/p>\n\n\n\n
At the same time, the IHEID Foundation Board had commissioned a lawyer to carry out an internal investigation, including an audit of the working atmosphere within the department in which the professor worked. The Board then informed the professor that a decision on whether to extend his appointment as a professor would not be taken until the lawyer\u2019s report had been submitted. Like other professors and staff members in the department, he was interviewed as part of the internal investigation.<\/p>\n\n\n\n
The lawyer\u2019s summary report is dated 15 September 2022. The contract as a professor was not renewed, and the Council informed him in October 2022 that, as a professor emeritus, he was no longer a member of the academic staff, although a shared office and access to the institute\u2019s facilities were made available to him for the year 2023 so that he could complete his project.<\/p>\n\n\n\n
The professor requested a copy of the audit report, namely the workplace climate survey. This request was refused.<\/p>\n\n\n\n
The professor then brought an action to enforce his right of access under Article 25 of the Data Protection Act. \u2018The subject matter of the dispute concerns access to the professor\u2019s personal data processed by the employer; more specifically, at this stage, to the data contained in the report of the internal investigation commissioned by the respondent concerning the working atmosphere in the department in which the appellant had worked for many years.\u2019<\/p>\n\n\n\n
The Employment Tribunal ordered the Institute to \u2018provide him with the internal investigation report, specifying that this document was intended solely for the court and that it was not to be handed over to or shown to the opposing party. [\u2026] During the appeal proceedings, the cantonal court did not grant the professor\u2019s request to allow his solicitor to consult the disputed report in advance. On the merits of the case, the Tribunal, and subsequently the Labour Chamber, examined whether any information contained in the report \u2013 and, if so, which specific information \u2013 should be disclosed to the former professor in order to ensure that his right of access to his personal data was respected\u2019.<\/p>\n\n\n\n
The professor appealed to the Federal Supreme Court.<\/p>\n\n\n\n
In its judgment, the Federal Court begins by reiterating the following principles:<\/p>
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The Federal Court also notes that, in the case of the professor and the institute, \u2018the report at issue is limited to an analysis of the working atmosphere within the xxx department and does not specifically target the appellant. By entrusting this internal investigation to a lawyer, the respondent\u2019s aim was to assess any potential shortcomings within the department and to gain an overall picture of the atmosphere there. One of the secondary issues was apparently also to advise the employer on the advisability of a second extension of the appellant\u2019s contract beyond retirement age.<\/p>\n\n\n\n
To carry out his investigation, the appointed lawyer interviewed several professors and staff members in the department, assuring them that their anonymity and the confidentiality of their statements would be protected. In the report submitted to the respondent, the investigator therefore redacted the names of the individuals interviewed whose statements he had included.\u201d<\/p>\n\n\n\n
In other words, the internal investigation report contains passages that relate to the professor personally and passages that do not.<\/p>\n\n\n\n
The Federal Court points out that, \u2018under the Data Protection Act, the question of the appellant\u2019s right of access to the statements of those interviewed and to the investigator\u2019s analysis of them arises only in respect of those passages of the internal investigation report which concern him personally, namely those in which he is named or identifiable\u2019.<\/p>\n\n\n\n
In the Federal Court\u2019s view, \u2018the information and assessments at issue therefore relate to the appellant\u2019s conduct and its potential impact on the atmosphere within the department, which is characterised by tensions. Whether they consist of statements of fact or value judgements, these personal data concern both the appellant and the persons interviewed, so that a balancing of interests within the meaning of Article 26 of the Data Protection Act is required. As regards the other information arising from the interviews, granting the appellant access to it is ruled out from the outset, as it does not constitute his personal data but exclusively relates to third parties\u2019 data\u201d.<\/p>\n\n\n\n
\u2018The investigator had assured the persons interviewed that their statements would remain anonymous and confidential. To this end, he redacted their names when he recorded their comments in the report intended for the respondent. Thanks to this guarantee, the individuals interviewed were able to freely express their opinions and feelings, thereby enabling the investigating lawyer to carry out his task effectively, providing the respondent with the most accurate picture of the prevailing atmosphere within the department, the existing tensions and their origins.<\/p>\n\n\n\n
The comments made about the appellant, as set out in the internal report, are protected by the guarantee of confidentiality. Those interviewed are entitled to have their statements concerning the appellant not disclosed to him against their will. As the cantonal court rightly points out, by disclosing such information, the employer would have unlawfully infringed the personality rights of the employees who agreed to speak to the investigator and, furthermore, would likely have contributed to a further deterioration of the working atmosphere within the department.<\/p>\n\n\n\n
\u2018The interest of the persons interviewed in keeping their participation in the internal investigation confidential clearly outweighs the professor\u2019s interest in knowing the opinions expressed about him and, by extension, in assessing the influence those opinions may have had on the decision not to renew his contract\u2019.<\/p>\n\n\n\n
The Federal Court is also of the view that the refusal to disclose certain passages and sections of the report to the professor is the only possible course of action. There are therefore no other, less intrusive measures available. In the Federal Court\u2019s view, \u2018redacting the names ensures confidentiality vis-\u00e0-vis the Foundation Board, whose primary objective was to obtain an overall picture of the atmosphere within the department and which was not interested in the identity of the individuals interviewed as such. On the other hand, whatever the appellant may say, this measure is insufficient to ensure that he himself cannot ascertain the names of the persons interviewed and the content of their statements. Indeed, having been a lecturer for many years in a department of around fifteen people, the appellant, upon reading the \u2018undisclosed\u2019 sections of the report, would, in all likelihood, have been able, by cross-referencing the information, to attribute a particular statement to a specific individual.<\/p>\n\n\n\n
In the Federal Court\u2019s view, the situation is comparable to that in the first judgment mentioned above. It therefore confirms that the refusal to disclose certain parts of the climate audit report does not infringe the professor\u2019s right of access to his personal data.<\/p>\n\n\n\n
Finally, the Federal Court notes that \u2018the personal data to which a natural person may, in principle, have access are those details which relate to them as an identified or identifiable individual (Art. 5(a) of the Data Protection Act). [\u2026]. However, the professor in question cannot be specifically identified in the phrases \u2018professors\u2019 or \u2018certain professors\u2019 used by the investigator; consequently, the passages containing these phrases do not contain any personal data relating to the appellant\u201d.<\/p>\n\n\n\n
In the opinion of the undersigned author, the following points should be borne in mind above all from these two judgements:<\/p>
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