3 February 2015 – Swiss Federal Supreme Court rules that an employee of a Swiss bank may request the bank to provide the employee with copies of all documents that have been delivered to the US Department of Justice and contain personal data pertaining to the employee

On 12 January 2015, the Swiss Federal Supreme Court found in favour of two employees of a Swiss bank and laid the obligation on the bank to provide the employees with copies of all documents that have been transferred to the US Department of Justice (DoJ) in April 2012 containing their personal data (4A_405/2014; 4A_408/2014; official publication is foreseen).

The background of this decision is the tax dispute between the USA and Swiss banks. In this regard, the Swiss Federal Council granted various banks the authorisation to cooperate with US authorities to resolve their tax dispute, which constitutes an exemption from art. 271 of the Swiss Criminal Code for the transfer of requested data to US authorities. However, authorised banks still have to comply with other applicable Swiss laws, in particular Swiss data protection and employment law provisions.

In the case at hand, the bank has allowed its employees to consult the documents containing personal data pertaining to them and which the bank has provided to the DoJ. The bank however refused to provide the employees with hard copies of the documents concerned.

Confirming the prior decisions of the Geneva Court of First Instance and the Geneva Court of Justice, the Swiss Federal Supreme Court held that, pursuant to art. 8 of the Federal Act on Data Protection (FADP), the employees of the bank were entitled to receive hard copies of all documents which contain personal data pertaining to them. The decision of the Swiss Federal Supreme Court is based on the following main reasoning:

• As all information allowing to identify the bank clients has been redacted in the documents before they were provided to the DoJ, handing out hard copies of such documents to the employees does as such not put at risk the banking secrecy. Moreover, the prohibition to reveal commercial secrecy does not apply to the bank as the holder of the secrecy;
• As all information allowing to identify the bank clients, other (ex) employees of the bank and other third parties has been redacted in the documents, the banks may not invoke an overriding interest of third parties to refuse to hand out hard copies of the documents to the employees;
• The employees’ request to obtain hard copies of the documents does not constitute an abuse of legal rights, as the employees may have a legitimate interest to dispose of such documents as regards possible civil claims against the bank and/or to anticipate possible measures of the American authorities against them;
• The bank was – in casu – not able to successfully demonstrate that it has an overriding private interest to refuse handing over the documents to the employees (in particular because the employees have already been able to consult the documents and were still subject to the banking secrecy and the secrecy obligation under their [former] employment relationship) and the potential risk that the documents may be shared with third parties as such is not sufficient to refuse handing over the documents to the employees;
• The employees may not waive their right to information in advance;
• The additional effort imposed on the bank is not relevant.

With this judgment, the Swiss Federal Supreme Court sets the threshold for refusing data subjects to access information pertaining to them and to obtain copies of relevant documents very high. It will be interesting to see if this judgment will in the future further increase information access requests from data subjects in the banking sector as well as in other sectors.