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Solicitor's lien and the Privacy Act Dana George
26 November 2014

barristers edit

We get it. As a lawyer, one of the least fun things about your job is chasing the money. Sometimes people just don’t cough up for the service you provide.

But this does not mean you can refuse to cough up personal information if it is requested by a client (or ex-client) under principle 6 of the Privacy Act (even if they owe you money for their legal bill). By way of case law on point, see CBN v McKenzie Associates.

The old idea of the “solicitor’s lien” – the right of a lawyer to retain a client’s property deposited with them, including crucial and original documents until the bill was paid – does not override principle 6 of the Privacy Act. Under principle 6, an individual is entitled to request a copy of their personal information held by an agency.   

If you hold personal information about an individual, and that individual requests it, you have obligations under the Privacy Act to respond to that request. Check out this handy flow chart.

You can charge them for the provision of information … BUT … that charge has to be reasonable (it can’t just be the amount of their outstanding bill – sorry – the Privacy Act says so).

Section 35(2) says what a private sector agency can’t charge for:

•           providing assistance to a requester;

•           the making of the request for information; or

•           processing the request, including deciding if the request is to be granted and, if so, in what manner.

Section 35(3) says what a private sector agency can charge for:

•           making the information available (copying/collating/sending) in compliance with the request.

We think this is a really helpful guideline on charging.

One of the best ways to ensure you are making a reasonable charge is to get a quote from a copy shop for a job. It’s likely that a quote from a copy shop will be a reasonable charge for making information available, as it will be a fair reflection of the amount of paper and time involved in the job.

And don’t worry. You don’t have to provide the information until you have, at least, received payment for the job of copying and sending the file.

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Comments

  • Is using a copy shop price as the final basis for a "reasonable charge" entirely accurate, as a customer would usually be handing the copy shop what needs to be copied?
    In an office situation staff must be paid to find and retrieve the information wanted, so the organisation would incur additional costs.
    In my situation many documents are kept in hard copy so must be looked for rather than simply being downloaded.
    Just a thought as we don't actually charge for this service.


    Posted by Julia Hart, 09/01/2015 12:29pm (3 years ago)

    Post Reply

    The aim of the Office of Privacy Commissioner’s blog is to provide a space for people to interact with the content posted. We reserve the right to moderate all comments. We will not publish any content that is abusive, defamatory or is obviously commercial. We ask for your email address so that we can contact you if necessary to clarify your comment. Please be respectful of authors and others leaving comments.

  • Hi Julia,

    Thanks for your comments. As noted above, section 35(2) says what a private sector agency can’t charge for. One of those things is finding and assessing the requested personal information, to enable you to establish what you actually hold and whether there is anything you want to withhold.

    The charging should only relate to the time and resources spent actually making a copy of the information and sending it. This is because the information should already be to hand following the decision making process over what to release.

    That’s why we’ve made a suggestion that a copy shop is a good idea for a busy legal practice (or other private sector agency). Once you’ve found and reviewed the information and decided what to release, it’s likely a copy shop will make a reasonable charge for the time and resources involved in the job.

    Posted by Dana, 15/01/2015 11:36am (3 years ago)

    Post Reply

    The aim of the Office of Privacy Commissioner’s blog is to provide a space for people to interact with the content posted. We reserve the right to moderate all comments. We will not publish any content that is abusive, defamatory or is obviously commercial. We ask for your email address so that we can contact you if necessary to clarify your comment. Please be respectful of authors and others leaving comments.

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The aim of the Office of Privacy Commissioner’s blog is to provide a space for people to interact with the content posted. We reserve the right to moderate all comments. We will not publish any content that is abusive, defamatory or is obviously commercial. We ask for your email address so that we can contact you if necessary to clarify your comment. Please be respectful of authors and others leaving comments.

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