Q: I am a medical doctor. At the request of an insurance company, I examined Mr. A in the capacity of an expert witness and then prepared an expert report on his medical condition. The solicitors acting for the opposite party to the litigation made a data access request to me under s18 of the Personal Data (Privacy) Ordinance ("the Ordinance"). The question is whether I am obliged to provide the expert report commissioned by the insurance company to the opposite party to the litigation.
A: It appears to us that a medical report prepared with reference to litigation actually taking place or in contemplation could be privileged from disclosure to the opponent on the basis of legal professional privilege. As a result, the exemption provided by section 60 of the Ordinance may be applicable to excuse any non-compliance of the opposite party's data access request to legally privileged materials. Be that as it may, however, you are still required under section 21 of the Ordinance to inform the maker of the data access request of your refusal to comply with his data access request and the reasons therefor within 40 days of receiving his request.