A teacher complained to me that his request to a school board of trustees for information had been refused. The board wanted to withhold a report written by the School Trustees Association concerning his employment because it had been provided on the understanding that it would be confidential.

I formed the opinion that the board did not have a proper basis to withhold the information.

Evaluative material

The board's claim of confidentiality raised issues under s 29(1)(b) of the Privacy Act, which allows information to be withheld 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.

Before information can properly be withheld under s 29(1)(b), four conditions must be met:

1. The information must be evaluative or opinion material compiled solely for one of the purposes set out in s 29(3);
2. The information must have been supplied to the agency seeking to withhold it;
3. There must have been an express or implied promise made to the person providing the information that the person's identity or the information (or both) would be held in confidence; and
4. Releasing the information to the requester would breach that promise.

The decisive issue in this case was the purpose for which the material was compiled. The report was written in the context of an employment dispute with the teacher. It appeared to have been compiled for the purpose of advising the board on the legality of action already taken against the teacher and the correct way to approach future matters concerning the teacher's employment.

One of the purposes in s 29(3) is determining an individual's suitability, eligibility or qualifications for employment, promotion or continuance in, or removal from, office. Another purpose is determining whether any contract, award, scholarship, honour, or benefit should be continued, modified, or cancelled.

The report did not seem to have been compiled solely for either of these purposes. Instead, it was more closely concerned with the board's actions to date, and with possible future actions.

For these reasons, I concluded that the report was not evaluative material and could not be withheld pursuant to s 29(1)(b).

Legal professional privilege

The board also sought to withhold the report under s 29(1)(f) on the basis that it was subject to legal professional privilege.

While the report was written at the board's request and advised on the legality of suspending or dismissing the teacher, together with the correct way of addressing issues which the teacher's performance had raised, it was not written by a lawyer. The issue was whether reference to legal professional privilege in s 29(1)(f) extended to lay advisers.

In an employment context, the Employment Court has extended privilege to communications between lay industrial advocates and their clients (Fahey v A-G ¹⁹⁹³ 1 ERNZ 161). However, that extension appears to have been confined to litigation privilege, which is a subset of the wider legal professional privilege of barristers and solicitors (Horn, Employment Contracts (Wellington: Brooker & Friend Ltd, 1997) p 48.)

Accordingly, a claim of privilege could be sustained only if litigation was pending or contemplated, a pre-requisite to litigation privilege. In the circumstances, I considered litigation was neither pending nor contemplated. The board of trustees had sought employment law advice but had not made any decision as to the teacher's future employment. While the teacher might have lodged a personal grievance claim if a certain course of action was adopted by the board, that course of action had not been determined at the time the report was written.

For these reasons, I formed the opinion that the report could not be withheld pursuant to s 29(1)(f).

I advised the board of my opinion that it did not have a proper basis to withhold the report. The board did not accept my opinion and refused to release the report. Having considered the context of the complaint, the policy and resource issues, I decided not to refer the matter to the Proceedings Commissioner. I discontinued my investigation under s 71(2) and advised the teacher of his right to refer the matter to the Complaints Review Tribunal.

August 1999