182 / 192
12.70
The extent of the coverage of legal professional privilege was also examined in AAB No.
19/2009. In this case, an employee whose employment was terminated made a data
access request for her personal data contained in a report compiled by the in-house
legal counsel of the employer. In refusing her data access request, the employer stated
that the report was prepared by the in-house legal counsel for the purpose of giving
legal advice and so was exempt under section 60 of the Ordinance. The report also
contained attachments. The question before the AAB was whether legal professional
privilege applied to the advice given by the in-house legal counsel and whether it
extended to cover the documents attached to the report.
12.71
Having considered the fact that the right to confidential legal advice is protected under
the Basic Law
9
and common law, the AAB held that in-house lawyers enjoy the same
legal professional privilege as external lawyers in relation to legal communications. As for
the documents attached to the report, the AAB took the view that section 60 of the
Ordinance should not and does not give a blanket claim to any pre-existing documents
obtained by a solicitor for purposes of litigation or legal advice. The requested data in
this case was contained in: (i) a document created for the purpose of being shown to
the lawyer; (ii) a document prepared by the employee herself; (iii) a document filed by
the employee herself; and (iv) a judgment of the Court. The AAB took the view that item
(i) was covered by legal professional privilege; items (ii) and (iii) did not qualify for legal
professional privilege as they were prepared or filed by the employee; and item (iv) did
not qualify for any legal professional privilege as it was a document open to the public.
10
Section 60A— Self-Incrimination
12.72
Under common law, an individual has the fundamental right and privilege against
disclosure of any information that may incriminate himself. The Ordinance as originally
drafted did not, however, allow a data user to refuse to comply with a data access
request on the grounds that compliance with that request will incriminate himself. The
new section 60A introduced by the Amendment Ordinance serves to uphold the
common law principle of privilege against self-incrimination, and provides as follows:
(1) If, as a result of complying with a request under a provision of data protection principle
6 or section 18(1)(b) in relation to any personal data, a data user might be incriminated
in any proceedings for any offence other than an offence under this Ordinance, the
data is exempt from that provision or section.
(2) Information disclosed by a data user in compliance with a request under a provision of
data protection principle 6 or section 18(1)(b) is not admissible against the data user in
any proceedings for an offence under this Ordinance.
9
Article 35.
10
The discovery application was made again for the same document in a civil action brought by the employee against
the employer in
DCCJ3068/2013
. The Court agreed with the AAB that item (i) is covered by legal professional privilege. It
was further ordered that while the other items would not by themselves qualify for legal professional privilege, they
should not be disclosed as they could shed light on the trend of the advice given by the in-house lawyer to the employer.