1 Feb 2006, 09:00

Following an employment dispute, a woman requested access to personal information held by her former employer. The employer withheld one document, an email sent by another employee to the Human Resources Manager regarding an incident that occurred between the woman and that employee. The woman complained about the refusal to provide her with access to the email.

Information Privacy Principle 6

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

The employer sought to withhold the email under sections 29(1)(a) and 29(1)(f) of the Privacy Act 1993.

Section 29(1)(a) – Affairs of another individual

In order for me to find that an agency has a proper basis to withhold personal information under section 29(1)(a), I must be satisfied that the release of that information would disclose the affairs of another individual, and that such a disclosure would be unwarranted. Implicit in the term “disclose” is the requirement that the requester is not already aware of the information at issue.

The woman advised that the contents of the email had been read to her and her lawyer during a meeting with her former employer's solicitor. The former employer did not dispute that the woman was aware of the contents of the email. However, the employer submitted that the email had not been read out by the employer's solicitor; rather, parts of it had been used as talking points when the employer's solicitor had discussed the other employee's position.

It appeared, however, that the substantive contents of the email had been disclosed to the woman during the meeting.

The former employer also submitted that the parts of the email referred to during the meeting had been disclosed solely for the purpose of attempting to resolve the woman's grievance. It argued that since the meeting had taken place on a “without prejudice” basis, the matter discussed at the meeting should not have been raised subsequently. “Without prejudice” means that the information is given to allow parties to negotiate a matter without implying any liability.

I agreed with the employer that it is important to allow “without prejudice” meetings to occur without hindrance. However, it was my view that the woman in fact gained knowledge of the contents of the email at that meeting. This makes it more difficult to argue that section 29(1)(a) applies.

I did not believe that giving access to the email would involve a disclosure of the other employee's personal affairs in these circumstances. The woman was already fully aware of the contents of the email. Further, even if release would effectively be a disclosure (because of the “without prejudice” nature of the meeting) I was not satisfied that giving access to a copy of the email would be an “unwarranted” disclosure. The email described the correspondent's views of an incident to which the woman had been a party. There was no argument that it had been inappropriate to divulge the contents of the email during the meeting. It was my view that if disclosure of the opinions in the email was truly unwarranted then the email should not have been read out or referred to in any substantial way during the meeting. Although questions remain about the status of material disclosed during “without prejudice” meetings, I was not satisfied that the exception applied in this situation.

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

Legal professional privilege protects lawyer-client communications. It is based on the difficulty of conducting legal business without professional assistance, and the need for full and unreserved confidence between adviser and client in order to receive that assistance effectively.

The employer's solicitors requested that the Human Resources Manager ask the other employee to compile the email about the incident so that they could advise the employer on the woman's complaint and the other employee's continued employment.

In these circumstances, I accepted the employer's submissions that legal professional privilege attached to the email. Moreover, disclosure during a “without prejudice” meeting might not normally constitute a waiver of privilege. However, it was my opinion that the privilege had in fact been waived here, because one of the employer's solicitors told the woman and her lawyer during the meeting that she could get a copy of the email.

I found that the employer had breached principle 6 and that there had been an interference with the woman's privacy. The employer then made a copy of the email available to the woman. This outcome satisfied the complainant and the file was closed.

June 2006

Indexing terms: Access to personal information – Employer – Refusal – Whether disclosure of email would be an “unwarranted disclosure” of another employee's affairs – Whether legal professional privilege applicable – Privacy Act 1993, ss29(1)(a) and 29(1)(f) – Information privacy principle 6.