1 Feb 2006, 09:00

A man made a request for access to personal information contained in a draft report into his conduct while he was employed by a government agency.

Information Privacy Principle 6

Principle 6 provides that an individual has a right of access to the personal information that an agency holds about them, unless one of the stated exceptions applies.

The government agency sought to withhold the draft report under the exception set out in section 29(1)(f) of the Privacy Act.

Section 29(1)(f) - Legal professional privilege

Legal professional privilege protects lawyer-client communications and also communications between a lawyer and a third party if made for the purpose of pending or contemplated litigation. It is based on the difficulty of conducting legal affairs without professional assistance, and the need for full and unreserved confidence between adviser and client in order to receive that assistance effectively.

The government agency advised that its full process for producing a report into an employee's conduct would normally involve three steps:

a) a draft report, upon which legal advice is sought;
b) a finalised draft report, incorporating any deletions, changes or additions to be made on legal advice, which is then given to the employee for comment; and
c) producing a final report after consideration of any comments made by the employee.

The government agency submitted that legal privilege attached to the draft report. This was because it was a draft prepared at step (a). The agency accepted that legal professional privilege would not attach to the versions produced at steps (b) or (c).

My investigation found that the version of the report to which the man sought access did fall into category (a). The agency had sent the draft report to its legal advisers. The advisers had made some marginal notes on the draft, but had not finalised their advice to the agency. A “finalised draft report” (that is, step b) had therefore never been produced. This was because the man left the government agency in the interim.

I was satisfied that the government agency had proper grounds to withhold the draft report from the man under section 29(1)(f) as the government agency had sent the draft report to its solicitors in order to receive legal advice on it. I was also satisfied that the only report in existence was the draft report that the agency had submitted to its legal advisers.

It was therefore my final opinion that the government agency had not breached principle 6 and had not interfered with the man's privacy.

The man was advised of his right to take his complaint to the Human Rights Review Tribunal and the file was closed.

June 2006

Indexing terms: Access to personal information – Employer – Refusal – Whether legal professional privilege applicable – Privacy Act 1993, section 29(1)(f) – Information privacy principle 6.