Our website uses cookies so we can analyse our site usage and give you the best experience. Click "Accept" if you’re happy with this, or click "More" for information about cookies on our site, how to opt out, and how to disable cookies altogether.
We respect your Do Not Track preference.
When people go to see a lawyer, they need to know that what they say will be kept confidential. They also need to know that the lawyer's advice to them is confidential. This means that they can be open and honest with their lawyer, and the lawyer can give them free and frank advice.
The first type of legal professional privilege, called 'solicitor/client privilege', protects this confidentiality. If a requester asks for information about themselves, but that information is contained in communications between a lawyer and their client undertaken for the purpose of seeking or giving advice, then the organisation can withhold it.
The second type of privilege is called 'litigation privilege'. It protects communications between a lawyer and their client or third parties relating to court proceedings. It enables lawyers and their clients to gather evidence and plan tactics without the risk of tipping their opponents off to what they are going to do.
Litigation privilege requires:
1. that the document(s) come into existence when litigation was either already under way or was 'reasonably apprehended' (meaning it's a serious or realistic prospect); and
2. the 'dominant purpose' for creating the document must have been to enable the client's legal adviser to either conduct the case or advise the client on that litigation.
Legal professional privilege arises in many areas of New Zealand law. It means exactly the same in the Privacy Act as it does, for instance, in the discovery process (the process where information is exchanged between litigation parties before a hearing so each side is adequately aware of what the case entails).
| 53. Other reasons for refusing access to personal information An agency may refuse access to any personal information requested if— |
| (d) the disclosure of the information would breach legal professional privilege |
Case Note 0305
Case Note 20612
Case Note 84948
Case Note 73919
Can legal professional privilege apply to communications between a client and an in-house lawyer?
Yes. Other New Zealand law currently allows for this and therefore the Privacy Act does too. In Case Note 95812, the Privacy Commissioner formed a view that the Police were entitled to withhold a report that had been prepared by a Police legal adviser, on the basis that it was covered by solicitor/client privilege. The legal adviser held a current practising certificate, and he prepared the report in his capacity as a legal adviser in order to assist the Police in deciding whether to lay a particular charge. The Privacy Commissioner noted that 'the fact that he was an in-house solicitor did not alter the ability to withhold the information under this ground.'
Can legal professional privilege be waived?
Yes. Legal professional privilege can be waived by the client - that is, the client can choose to release the information that is privileged.
Sometimes, a client can act in a way that waives privilege, even though he or she did not strictly mean to do so. For example, the Ombudsman dealt with a case where the requester wanted a copy of a letter on his employment file that contained legal advice to the employer. Although the employer withheld a copy of the letter itself, claiming that it was subject to legal professional privilege, it did allow the requester to read the letter and take notes from it. The Ombudsman decided that in the circumstances the employer had waived the privilege by allowing the requester to see the information at issue (Case No 975 (1987) 8 CCNO 81). The Privacy Commissioner has followed exactly the same approach.
