Court of Cassation: right of access to personal records

By judgment no. 6775 of 7 April 2016, the Court of Cassation has asserted the right of workers to access their personal records, containing the documents and acts relative to the professional pathway and career advancement whilst in employment. In this case, a woman had repeatedly asked her employer to access, pursuant to Article 13 of Law no. 675/1996 (in the case at hand, applicable ratione temporis, currently Legislative Decree no. 196/2003), her personal records following several negative evaluations of her professional performance, without receiving a reply. The woman therefore decided to turn to the Italian Data Protection Authority, which – after a first invitation to the employer to spontaneously comply with the request – issued two orders in favour of the woman, which were also ignored. The woman applied to the judicial authority seeking protection of her rights. The court of first instance and the court of appeal rejected her petitions. The woman then resorted to the Court of Cassation, which accepted her claims. In particular the Court of Cassation remarked that the obligation of the employer to allow the employees the full exercise of the right to access their records, derives, even before the Data Protection Law, from the observance of the principles of good faith and fairness referred to in Articles 1175 and 1375 of the Italian Civil Code. With regard to the principle of alternative application to the judicial authority instead of the Data Protection Authority, the Court, upholding a previous stance, has remarked that if, in a court of law, “the non-compliance of the data controller (ed.’s note, in the case at hand, the employer) with the measures issued by the Data Protection Authority is contested and/or payment of pecuniary or non-pecuniary damage is claimed – a matter reserved to an ordinary court and that in any case has specific causa petendi and petitum entirely different from the issues brought to the Data Protection Authority – the application of the aforementioned principle of alternative applications for the protection of rights can certainly not be assumed (see Court of Cassation no. 19534, 17 September 2014).