23 Feb 2015, 09:00

Following a minor car accident, a woman made a claim to her insurance company. The insurance company asked a private investigator to interview the woman, and witnesses, and prepare a report.

When the woman asked for a copy of the investigation report, the insurance company refused to provide it on the basis that disclosing it would breach legal professional privilege.

Under principle 6 of the Privacy Act, individuals are entitled to request, and have access to, personal information that is held by an agency.

The investigation report contained personal information about the woman as it was about the accident she was involved in.

An agency may refuse to disclose information requested under principle 6 in limited circumstances which are contained in sections 27-29 of the Privacy Act.

The insurance company relied on section 29(1)(f) of the Privacy Act to withhold the investigation report.  This section provides that an agency may refuse to disclose personal information if disclosure would breach legal professional privilege.

There are three categories of documents that attract legal professional privilege:

1. Lawyer-client communications;
   
   
2. Communications between a lawyer and third parties, if made for the purpose of pending or contemplated litigation;
   
   
3. Communications between the client and third parties, if made in order to obtain information to be submitted to the client's lawyer for the purpose of obtaining advice upon pending or contemplated litigation.

The insurance company submitted that litigation privilege applied to the report.

To rely on litigation privilege, an agency has to establish that, at the time information was prepared, legal proceedings had commenced or were in reasonable contemplation, and that the dominant purpose of the information was that of litigation.

We were not satisfied that, at the time the investigation report was prepared, that litigation was reasonably contemplated. The dominant purpose of the report was to set out details of the car accident and advise the insurance company on whether to accept the woman’s claim. There was no litigation contemplated at this early stage of the decision-making process.

The insurance company agreed with our view and released a copy of the report to the woman.

The seven month delay in accessing the report caused the woman ongoing stress and anxiety. It also delayed a complaint she made to the Insurance & Savings Ombudsman where the report may have been useful evidence.

Under principle 6, the woman did not need to prove she suffered harm as a result of the delay in receiving the report for us to find her privacy had been interfered with. As the insurance company did not have a proper basis to withhold the report under the Privacy Act, this was an automatic interference with her privacy.

The insurance company agreed to pay the woman financial compensation to resolve the complaint.

February 2015

Access to personal information – insurance company – investigation report withheld – litigation privilege – dominant purpose – Privacy Act 1993; principle 6