1 Feb 2009, 09:00

A man asked a government agency for all of the information it held about him, particularly legally privileged documents and copies of complaints made about him and referred to in Court.

The agency provided the man with a summary of the complaints, but withheld specific details of the complaints. It also withheld documents that it claimed were legally privileged.

The man complained to us that the agency had wrongly withheld this information.

Principle 6

Principle 6 of the Privacy Act (“the Act”) states that where an agency holds personal information in such a way that it can readily be retrieved, the individual is entitled to have access to that information. This right is subject to the withholding grounds in sections 27-29 of the Act.

Unwarranted disclosure of someone else’s affairs

The agency relied on section 29(1)(a) to withhold copies of the complaints made about the man. Section 29(1)(a) of the Act states that an agency may refuse to disclose any information requested under principle 6, if the disclosure of the information would involve an unwarranted disclosure of the affairs of another individual.

We agreed that the agency was entitled to withhold some details of the complaints under that section. These details were the names of some of the complainants, and contact details for the complainants. In the circumstances, it would have been an unwarranted disclosure to provide the requester with this information.

However, as a result of our investigation, the agency agreed to provide the man with a more detailed summary of the complaints, together with a detailed account of one of the complaints. They also released the name of one complainant and three witnesses, as these had previously been disclosed to the man’s lawyer during Court proceedings. Giving him this information again would not result in an unwarranted disclosure of those people’s affairs.

This result ensured that the man had much greater knowledge of what the complaints against him entailed, while at the same time appropriately protecting the privacy interests of other people.

Summaries – a useful option

Agencies are not always aware that a summary is a useful way of making as much information as possible available to requesters. While section 42(2) states that an agency shall make the information available to the individual requesting the information in the form preferred by the individual (for example copies of documents), it is not always possible to do this without prejudicing the interests protected by sections 27 to 29. A summary (section 42(1)(e)) is a useful way of protecting those interests while ensuring that the requester has the maximum possible access to information.

This particular agency was aware of the option of giving a summary, but we were able to assist it in improving the summary that it provided.

Legal professional privilege

We agreed with the agency that it was entitled to withhold the legally privileged information under section 29(1)(f). Section 29(1)(f) allows an agency to refuse to disclose any information requested under principle 6 if disclosure would breach legal professional privilege.

Here, the information involved communications between the agency’s employees and its solicitors, for the purpose of obtaining legal advice in anticipation of litigation involving the requester. As a result, this clearly fell under the category of litigation privilege, and the agency was entitled to rely on section 29(1)(f) to withhold that information.

Maintenance of the law

We also considered that the agency was entitled to rely on section 27(1)(c) of the Act. Section 27(1)(c) allows an agency to refuse to disclose any information requested under principle 6, if disclosure of the information would be likely to prejudice the maintenance of the law, including the prevention, investigation and detection of offences.

The agency argued that its statutory function of preventing and detecting offences depended upon breaches of the relevant legislation being reported by the community. We considered that section 27(1)(c) applied as it would be unlikely that people would come forward and provide the agency with information if they thought their identities and other personal information would be released to the person they reported.

Conclusion

The result of our investigation was that we considered that the agency had not breached principle 6. It was entitled to rely on sections 27(1)(c), 29(1)(a), and 29(1)(f) to withhold the information concerned. We were pleased, however, that the agency improved its summary of information and provided the requester with some further details.

We advised the requester of our view and closed our file.

January 2009

Access to personal information –Government agency – unwarranted disclosure of the affairs of another individual – legal professional privilege (litigation privilege) – maintenance of the law - summary of information - no interference with privacy – Privacy Act 1993, sections 29(1)(a), 29(1)(f), 27(1)(c), 42(1)(e)