Copy of all work e-mails? - Scope of the right to information still unclear

On April 27, 2021 (Ref.: 2 AZR 342/20), the Federal Labor Court (BAG) ruled that a dismissed employee cannot demand that his former employer hand over a copy of all his e-mail communications from and about him. However, since the BAG based this decision on civil procedural requirements, it remains still unclear how far the right to information under data protection law extends and thus also how elaborate this can become for companies.

Facts and decision

The complaint was filed by a business lawyer who had been dismissed after only one month of his probationary period. In the course of the dismissal protection proceedings, he also asserted a claim for information under data protection law pursuant to Article 15 of the GDPR. He demanded disclosure of the personal data processed about him and the handover of corresponding copies thereof, including all e-mail correspondence relating to his person. Thus, the matter concerned the disputed scope of the data protection law claim to information about the stored personal data from Article 15 (3) of the GDPR, which also provides for a claim to the provision of a copy of this data. 

The Regional Labor Court of Lower Saxony (judgment of 9.6.2020 - Ref.: 9 Sa 608/19) has partially upheld the plaintiff, namely insofar as it concerns personal data that the employer had processed. According to the Regional Labor Court of Lower Saxony, only this coincides with the right to information under Article 15 (1) GDPR. However, his own electronic correspondence with the company did not have to be communicated to the plaintiff, because the plaintiff know it himself. According to the purpose of protection, there is therefore no reason to make this entire email correspondence available.

The BAG has now also rejected the claim for a copy of the e-mails sent during the employment relationship However, the BAG does not clarify the question of the scope of this claim, because it gives formal reasons for the rejection: The claim for a copy of the entire e-mails was too vague (Section 253 (2) No. 2 ZPO) and the request for information was not asserted by way of a step action (Section 254 ZPO). According to the BAG, it is therefore unclear which e-mails exactly the plaintiff is requesting a copy of. However, as long as the messages are not specifically designated, they could not be enforced after a judgment.

Background and inconsistent case law

Since the introduction of the GDPR, former employees or their representatives often try to expand the claim for a copy of data pursuant to Art. 15 (3) GDPR as a procedural tactical means to a claim for disclosure of files in order to obtain additional information to substantiate their claim or to exert pressure for the payment of a higher severance payment.

The case law on the scope of the right to information is very inconsistent. While, for example, the Cologne Regional Court (ruling of March 18, 2019 - Ref.: 26 O 25/18) takes a rather restrictive view of the right to information and wants to prevent employees from conducting inadmissible research of the employer, the Baden-Württemberg Higher Labor Court (ruling of December 20, 2018 - Ref.: 17 Sa 11/18) and the Cologne Higher Regional Court (ruling of July 26, 2019 - 20 U 75/18) based their decisions on a rather broad definition of data. In its ruling of February 6, 2020 (Case No.: 4 O 6/19), the Regional Court of Heidelberg at least rejected a claim for information relating to backup files of an email account due to the disproportionate effort required to restore them.

Outlook

In its current decision, the BAG refers back to the civil procedural requirements described above and leaves open the question of whether the right to a copy pursuant to Art. 15 (3) GDPR can also include the provision of a duplicate of e-mails.

Nevertheless, the decision is not insignificant for the practice. This is because the BAG clarified that the data subject requesting the information must make it clear which e-mails are to be made available to him or her in copy. Unfortunately, the BAG lacked clear words here.

The BAG would also have had the opportunity to submit the question of whether the right to be provided with a copy in accordance with the requirements of the GDPR can also include a copy of e-mails for a response to the ECJ. The BAG did not do this either and it is therefore quite possible that the BAG believes that the ECJ has a different opinion and would have decided the matter differently.

Thus, the right to information under Article 15 of the GDPR continues to hover over every (former) employment relationship like a sword of Damocles. However, with the current decision, the BAG has at least raised the hurdle for asserting the right to information. The request for a “data copy” pursuant to Article 15 (3) of the GDPR must now be sufficiently specific. It remains to be seen whether the BAG will provide further information in the reasons for its decision, which have not yet been published, as to what form this specification should take.