Privacy Commissioner - Te Mana Matapono Matatapu

Skip to content

Evaluative material

"Evaluative material" is evaluative or opinion material compiled solely

(a) to determine whether someone should be -

• employed or appointed to a position; or
• promoted, or continue in their position; or
• removed from employment or from their position; or
• given a contract, award, scholarship, honour, or other benefit; or

(b) to determine whether any contract, award, scholarship, honour or benefit should be continued, modified, or cancelled; or

(c) to decide whether to insure a person, or property, or to continue or renew the insurance of the person or property.


An agency can withhold confidential personal information from a requester if that information is evaluative or opinion material compiled solely for one of the purposes listed (for example to decide whether to employ the requester).

Agencies need to be able to get information so they can make good decisions about things like employment, giving awards or making decisions about insurance. But they may not be able to get the information unless the person supplying it can be sure that it will be kept confidential and not given to the person concerned.

For instance, some job referees may not be completely frank about a job applicant's weaknesses if they think that what they say will get back to the applicant.  However, it is very important for the agency to be able to see the full picture. So the referee can give information in confidence, and have that confidence preserved.

• What is evaluative or opinion material?
• What does "compiled solely" mean?
• When will information be confidential?
• How will I know that information was supplied in confidence?
• If I promised confidentiality to the person who gave me the information, I can withhold everything, yes?
• It's not fair if I can't see the information - what do I do?

What is evaluative or opinion material?
Evaluative or opinion material is just that - information about what someone thinks about the person who's asking for the information.  For example, it's a judgment about the person's skills, their character, their qualities or their eligibility for an award. 

What does "compiled solely" mean?
The agency needs to compile the evaluative material. It must have collected it, or put together the material it already has, to enable it to make its decision.

To be able to refuse a request for the information, the agency needs to have compiled the evaluative material solely for one of the listed purposes. If it has compiled the information for other purposes as well, it cannot refuse the request.

When will information be confidential?
The agency must be able to show that the person who gave them the evaluative material (the supplier) did so on a clear understanding that the material was to be kept confidential or that they wouldn't be identified as the source of the material.

How will I know that information was supplied in confidence?
It's easiest where there's a record that the supplier asked for the information to be kept confidential. It's usually simple for the agency to make sure that it knows what the supplier's expectations of confidence are (if any) and to make a note of them.

If there's no record, to claim confidentiality it has to be obvious from the circumstances that the supplier must have expected that it would be kept confidential. Would the supplier have given the agency the evaluative material if he or she thought the agency would hand it over to the person concerned? If the answer is no, then it's confidential.

If I promised confidentiality to the person who gave me the information, I can withhold everything, yes?
It depends what the promise covered. Sometimes the supplier wants to remain anonymous, but isn't worried if the agency gives the evaluative material itself to the person concerned. Agencies should make sure it's clear what is confidential - is it just the supplier's identity, or is it the information as well?

The basic rule is that the agency needs to give as much of the material as possible to the requester, as long as it doesn't breach the confidence.  A summary of the information is often a useful way to go.

It's not fair if I can't see the information - what do I do?
It's hard if you can't see what others have said about you. But confidentiality is important too.

What you can do is to ask the agency to give you a summary of what was said, or to give you the main points so that you have an idea of what happened. Sometimes this won't be possible, because even a summary could breach confidentiality, but it's worth a try.

References

Privacy Act 1993
Section 29(1)
An agency may refuse to disclose any information requested pursuant to principle 6 if-

(b) The disclosure of the information or of information identifying the person who supplied it, being evaluative material, would breach an express or implied promise-
(i) Which was made to the person who supplied the information; and
(ii) Which was to the effect that the information or the identity of the person who supplied it or both would be held in confidence;

Section 29(3)
For the purposes of subsection (1)(b) of this section, the term evaluative material means evaluative or opinion material compiled solely-
(a) For the purpose of determining the suitability, eligibility, or qualifications of the individual to whom the material relates-
(i) For employment or for appointment to office; or
(ii) For promotion in employment or office or for continuance in employment or office; or
(iii) For removal from employment or office; or
(iv) For the awarding of contracts, awards, scholarships, honours, or other benefits; or

(b) For the purpose of determining whether any contract, award, scholarship, honour, or benefit should be continued, modified, or cancelled; or

(c) For the purpose of deciding whether to insure any individual or property or to continue or renew the insurance of any individual or property.

Case Notes:
Case Note 90682
Case Note 96052
Case Note 88333
Case Note 85552 

HRRT/Court cases: