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An access request and a successful claim of legal privilege by a Data Controller [2008] IEDPC 9 (31 December 2008)

In May 2007 I received a complaint from a solicitor acting on behalf of a client regarding the alleged failure of a data controller to respond to an access request.  The solicitor had submitted an access request on behalf of his client to her former employer in February 2007.  The data controller failed to respond to the access request within the statutory forty-day period.

My Office commenced an investigation by writing to the data controller about the complaint.  We received a reply from the data controller's solicitor confirming that a response had issued to the access request.  The reply included a number of documents containing personal data.  However, the data controller's solicitor informed my Office that their client was claiming privilege in respect of two specific documents and was therefore not releasing them.  These documents were a handwritten account by the store manager of the data subject's period of employment with the data controller and a handwritten account by the store manager relating to the data subject's alleged personal injuries suffered as a result of a workplace accident in July 2006.  The solicitors for the data controller informed my Office that both documents were created by their client for the benefit of legal advisers and in anticipation of litigation following receipt of two solicitor's letters on behalf of the data subject.

There are some very limited exemptions within the Data Protection Acts to a data subject's right of access.  These are set out in Sections 4 and 5 of the Acts.  One of the restrictions to the right of access is set out in Section 5(1)(g).  This states:-

Section 4 of this Act does not apply to personal data in respect of which a claim of privilege could be maintained in proceedings in a court in relation to communications between a client and his professional legal advisers or between those advisers.

The data subject's solicitor subsequently informed my Office of his dissatisfaction with the data controller's claim of privilege.  It was necessary for my Office to be satisfied that the data controller's claim of privilege in relation to these documents was properly founded.  For that purpose I requested the data controller to confirm to my Office the date(s) on which the documents were created and the purpose or purposes for which the documents were created.  In response, we were informed that the relevant documents were created on two separate dates in the second half of February 2007 after the data controller received letters dated 6 February, 2007 from solicitors for the data subject.  The data controller's solicitors informed my Office that the letters from the data subject's solicitors had intimated personal injuries and employment claims on behalf of the data subject.

The claim of legal privilege under the Acts relates only to communications between a client and his professional legal advisers or between those advisers.  The date of creation of the documents, on which the data controller was claiming privilege, when compared with the dates of its receipt of communications from the data subject's solicitors, satisfied my Office about the purpose of these documents.  We accepted that the claim of legal privilege could be applied to both documents as it fell into the category of a communication between a client and his professional legal advisers.

There are limited exemptions under the Acts to a data subject's right of access. When a data controller claims an exemption, my Office may request additional information from the data controller to be satisfied that the withholding of the documentation is properly founded.  Such matters are dealt with by my Office on a case by case basis.