1 Feb 2003, 09:00

A scientist employed by a research institute became involved in a dispute with the Institute about the attribution of his research. The scientist requested access to his personal files. The Institute provided access to all material on the files apart from one memorandum. The scientist complained to me about this. I considered his complaint under information privacy principle 6, and formed the opinion there was no breach.

Principle 6 entitles individuals to have access to personal information that is held about them by an agency. An agency can refuse a request for a limited number of reasons set out in Part IV of the Privacy Act 1993. The Institute advised me that it sought to withhold the memorandum under section 29(1)(f) which refers to legal professional privilege.

Legal professional privilege

Section 29(1(f) provides that an agency may refuse to disclose information if that disclosure would breach legal professional privilege. Legal professional privilege can apply to three types of communication:

(a) between a lawyer and client;
(b) between a lawyer and third parties - if the communication is for the purpose of pending or contemplated litigation; and
(c) between the client and third parties - if the communication is in order to obtain information to be given to the client's lawyer for legal advice about pending or contemplated litigation. (Employees of the client are normally considered to be third parties.)

The memorandum in the file fell within the third type of communication: it was prepared by an employee of the Institute to assist in receiving legal advice.

The courts have established principles to determine whether a document is legally professionally privileged. One of the cases where the New Zealand Court of Appeal dealt with this question is Guardian Royal Exchange Assurance of New Zealand Ltd v Stuart ¹⁹⁸⁵ 1 NZLR 596. The case laid down a two-part test. An agency wishing to rely upon legal professional privilege to withhold documents must first show that the dominant purpose for preparing the document was to enable an external legal adviser to conduct or give advice about litigation and, second, that litigation was reasonably anticipated at the time the document was created.

Reasonably anticipated litigation

I first considered whether litigation was reasonably anticipated. New Zealand courts have noted "A mere vague apprehension of litigation does not suffice" and also noted that the assessment must be objective (Dinsdale v CIR (1997) 18 NZTC 13 252, Eichelbaum CJ).

The Institute told me that the memorandum was prepared after, and as a result of, threats of legal action made by the scientist against the Institute and its employees. The lawyer for the Institute said that the memorandum, together with a considerable amount of other supporting information, was sent to him for legal advice. I was satisfied that the memorandum was prepared at a time when litigation was anticipated and was in order to enable the Institute to obtain external legal advice.

Dominant purpose

I then considered what the dominant purpose was for the creation of the memorandum. The memorandum contained a report from an employee who had detailed knowledge of the matters at the relevant time. I was satisfied that the memorandum's dominant purpose was to record the facts in order to obtain legal advice.

I formed the opinion that the Institute was entitled to withhold the memorandum under section 29(1)(f). I advised the scientist of my opinion and of his right to take his complaint to the Human Rights Review Tribunal. I then closed my file.

June 2003

Indexing terms: Access to personal information - Employer - Refusal - Legal professional privilege - Dominant purpose of document - Litigation reasonably anticipated - Privacy Act 1993, s 29(1)(f) - Information privacy principle 6