181 / 192
12.65
For this exemption to apply, section 60 does not seem to require absolute proof of the
existence of the privilege but a plausible claim to such privilege will suffice in light of the
drafting of “in respect of which a claim to legal professional privilege could be
maintained in law”. The validity or otherwise of the claim is ultimately a matter for the
Court not the Commissioner to decide.
12.66
This exemption operates to protect privileged information held by a party to litigation
from being accessed by the opponent, sometimes motivated by the ulterior intent of
fishing for useful information.
12.67
In a complaint handled by the Commissioner in which a defendant of an ongoing
litigation made a data access request to the plaintiff’s solicitors for “all data held by you
in respect of myself and all personal data passed by you to third parties”, information
containing the personal data of the defendant was directly or indirectly obtained by the
plaintiff’s solicitors from their client in the conduct of the litigation and used in the course
of legitimate legal enquiries. On the basis that such personal data was held and used by
the solicitors in relation to an ongoing litigation and held in their legal capacity as legal
advisor to the plaintiff, the Commissioner came to the view that a claim for legal
professional privilege could be maintained in law, and hence the section 60 exemption
was properly invoked to refuse such data access request.
12.68
In another case handled by the Commissioner, an individual sought from his insurer, by
means of a data access request under section 18(1)(b), a copy of the loss adjuster’s
report prepared for his claim for compensation relating to a car accident. The insurer
refused to comply with the data access request on the grounds that the personal data
in the said report was exempt from being accessed by virtue of legal professional
privilege. Despite the fact that the insurer honoured the claim subsequently without
going through any litigation, there was evidence to show that the insurer had found the
claim suspicious and therefore had the report prepared with the dominant purpose to
seek legal advice in relation to the contemplated litigation. The Commissioner came to
the view that the report could be protected by legal professional privilege and that the
section 60 exemption was properly invoked. The same reasoning applies in respect of
medical reports obtained by an insurance company when litigation is contemplated for
the purpose of seeking legal advice in response to an insurance claim lodged by the
insured.
12.69
The Commissioner is of the view that section 60 also applies to legal advice given to the
data users by their internal legal advisors. In a case handled by the Commissioner, an
individual made a complaint to a statutory body and applied for legal assistance from
the statutory body in relation to the complaint. The statutory body subsequently turned
down the complaint and the application. The individual made a data access request to
the statutory body pursuant to section 18(1) for information in relation to her complaint
and application. Pursuant to the request, the statutory body provided certain
documents to the individual but refused to disclose certain parts of the documents to
the individual by relying on section 60. Since the parts which the statutory body refused
to disclose to the individual were legal advice given by the body’s internal legal
department in relation to the complaint and the application, the Commissioner was of
the view that the exemption under section 60 was available to the statutory body.