1 Feb 2012, 09:00

A woman alleged that work undertaken by her local council had been the cause of damage to her property. She notified the council that she was considering taking legal action about this.

The council advised its insurance company of the potential legal action. The insurance company arranged for a geotechnical report to be carried out, in order to try and establish the cause of the damage to the property.

The woman later asked for a copy of the geotechnical report ("the report") from the insurance company. The insurance company refused.

Principle 6

Principle 6 of the Privacy Act ("the Act") gives people the right to request, and have access to, personal information held by an agency

There were two main issues for us to consider in this case. Firstly, whether the geotechnical report was "personal information" about the woman.

Secondly, if the report was personal information, whether the insurance company was entitled to withhold it.

The insurance company thought the report was not personal information about the woman and noted that the woman was not named in the report.

We disagreed. While the report did not refer to the woman by name, it referred to the "property owner" of a property at a specific address. We considered this was sufficient to identify the woman.

We also considered that the entire report was the woman's personal information - not just the sections which referred to the "property owner".

This was because the report provided information about the woman's property, the damage to the property, and had direct implications for her situation.

Withholding Grounds

The insurance company accepted our view that the report was the woman's personal information, but wanted to withhold it under sections 29(1)(b) and 29(1)(f) of the Act.

Section 29(1)(b)

Section 29(1)(b) allows for "evaluative material" to be withheld if the disclosure of the information would breach an express or implied promise that it would be held in confidence.

The term "evaluative material" covers evaluative or opinion material compiled solely for one of the purposes set out in section 29(3) of the Act.

We were not satisfied the report was compiled solely for one of the purposes set out in section 29(3). On this basis we did not consider that the insurance company could rely on section 29(1)(b) to withhold the report.

Section 29(1)(f)

Section 29(1)(f) allows information to be withheld where disclosing the information would breach legal professional privilege.

The insurance company argued that releasing the report would breach litigation privilege.

This type of legal privilege protects communications between a lawyer or client and third parties when:

• litigation is either in progress or is reasonably contemplated; and
• the dominant purpose of the communication is to enable the lawyer to conduct or provide advice about the litigation.

We accepted that, due to the nature of comments the woman had made to the council, litigation was reasonably contemplated in this case.

However, we were not satisfied that the dominant purpose for creating the report was in order to obtain legal advice regarding that litigation.

Rather, it was our view that the dominant purpose of obtaining the report was to establish the cause of the damage to the woman's property.

On this basis we were not satisfied that the insurance company could withhold the report under section 29(1)(f).

In light of our view that it could not rely on either section 29(1)(b) or section 29(1)(f) in this case, the insurance company agreed to release the report to the woman.

The woman was satisfied with this outcome and we closed our file.

December 2012

Access to personal information - geotechnical property report - meaning of "personal information" - meaning of '"evaluative material" - legal professional privilege - Privacy Act 1993; principle 6, sections 2, 29(1)(b) and 29(1)(f)