Other People in the Documents
The main reason material gets withheld, and the judgement employers most often get wrong in both directions.
THIRD PARTY DECISION
One per person appearing in the material
- WhoThe third party, by roleA colleague, a complainant, a manager, a customer
- What identifies themName, or enough to identify themRedacting a name does not help if the role gives them away
- Can we disclose without themYes, by redaction, or noTry this before anything else
- ConsentSought, given, refused, or not soughtWith the reason where not sought
- ReasonablenessWhy disclosure is or is not reasonable without consentTheir expectation of confidentiality is the main factor
- Duty of confidenceDoes one existA complainant usually has one
- DecisionDisclose, redact, or withholdPer person, not per document
- Recorded byName and dateThe judgement is reviewable
Most employment documents mention somebody other than the requester. Deciding what to do about them is the main work in any substantial request.
The response discipline in “Other People in the Documents” also applies to records created by workforce software. A team using a practical route to boss vs leader in relation to boss vs leader should know where data is stored, who can export it, how long it remains available and how a person can challenge a misleading record before a request arrives.
The question in order
Can the material be disclosed without identifying them? Usually yes, by removing a name. This is the first move and it resolves most cases.
For a separate benchmark relevant to “Other People in the Documents”, consult the Harvard Business Review security and privacy analysis. Use it to test purpose, data flow, retention, access and response procedures rather than substituting a generic checklist for the organisation’s actual records.
If not, is it reasonable to disclose anyway? A balance between the requester's right and the third party's interests.
Or has the third party consented? Which can be sought and frequently should not be.
The factors in the balance
Any duty of confidentiality owed to the third party. A complainant in a grievance usually has one; a manager recording a routine decision usually does not.
Whether they would expect this to be disclosed.
Whether they refused consent, where asked.
And whether the requester already knows — a manager whose name appears on an appraisal the person has already seen is not protected by withholding it now.
The two errors
Over-redaction, which the previous note covers and which is the more common. Removing every name including the requester's own manager produces a document nobody can read and a complaint that follows.
Under-protection, which is rarer and worse. Disclosing a complainant's identity in a grievance file can expose somebody to retaliation, and it is a breach of the organisation's duty to them rather than a technicality.
When not to ask for consent
Asking a complainant whether their identity may be disclosed to the person they complained about tells them it was requested, which is itself information and may be alarming.
Where the answer is obviously no, the better route is to decide without asking and record why. Asking creates an expectation that the answer will be respected, which it must then be.
Managers and authors
A person who wrote something in a professional capacity is less protected than a colleague who said something in confidence.
Appraisal comments, management notes and decisions made in a role are generally disclosable with the author identified. Treating managers as third parties to be shielded is the version that reads badly when challenged.
Trying redaction first
Can the material be disclosed without identifying them? Usually yes, by removing a name, and this resolves most cases before any balancing is needed.
When asking for consent is the wrong move
Asking a complainant whether their identity may be disclosed tells them a request was made, which is itself information and may be alarming. Where the answer is obviously no, decide without asking and record why.
Managers are not third parties to shield
Somebody who wrote in a professional capacity is less protected than a colleague speaking in confidence. Appraisal comments and decisions made in a role are generally disclosable with the author named.
Over-redaction, which produces complaints. And under-protection, which exposes a complainant to retaliation and is a breach of a duty rather than a technicality.
Asking the question in order
Can it be disclosed without identifying them. If not, is disclosure reasonable anyway. Or have they consented. Most cases resolve at the first and never reach the balance.
What the requester already knows
A manager whose name appears on an appraisal the person has already seen is not protected by withholding it now. Redaction that conceals nothing is redaction that only irritates.