Making claims of legal professional privilege

Claims for legal professional privilege when responding to a notice issued under the Privacy Act

The OAIC has a range of information and document gathering powers, including the powers in sections 26WU and 44 of the Privacy Act.

Legal professional privilege

When responding to an OAIC compulsory notice, you must provide to us all material that is responsive. However, the OAIC understands there may be some material over which you wish to make a claim of legal professional privilege (LPP). Information or documents subject to a valid claim of LPP are not required to be produced.

Generally speaking, LPP applies to confidential communications between a lawyer and a client made for the dominant purpose of:

• giving or obtaining legal advice, or
• providing legal services for use in, or in relation to, actual or anticipated legal proceedings.

Before responding to a compulsory notice, it is your responsibility to assess whether LPP applies (including, obtaining your own legal advice if appropriate) and, if so, whether the information or document (or part of a document) should be withheld or redacted.

As the compulsory notice recipient you must, by or before the date specified in the notice, provide the OAIC with all responsive material over which you do not claim LPP on your own behalf and in respect of which you are not making a third-party LPP claim. Failure to do so may be considered non-compliance with the compulsory notice. Non-compliance with a compulsory notice may constitute a criminal offence or civil contravention under sections 65 and 66 of the Privacy Act.

Who can make a claim of LPP

If you are the recipient of a compulsory notice, you may assert a LPP claim over responsive material if you:

• are the privilege holder, or
• are not the privilege holder but seek to assert the privilege claim on behalf of the privilege holder (third-party privilege claim).

The privilege holder is generally the person who:

• in respect of advice privilege, is the client to whom the legal advice is being given or by whom the advice is being obtained, or
• in respect of litigation privilege, is the client who is involved as a party in actual legal proceedings or who is likely to be involved as a party in anticipated legal proceedings.

How to make a claim of LPP to the OAIC

The following sections set out the information that you should provide to assist the OAIC with assessing your claim for LPP. You must provide the information specified below in relation to any LPP claim at the same time that you respond to the compulsory notice. If you think you may need longer to provide this information, you should contact the OAIC as soon as practicable, and prior to when any response is due. The contact officer’s details are provided in the notice cover letter. The OAIC may agree in exceptional circumstances to another date for you to provide the information.

When you provide the requested information to substantiate a claim for LPP, the OAIC will not assert that the information provided for the purposes of substantiating the claim amounts to a waiver of your LPP claim. Although the information provided may inform the OAIC’s view on whether it considers the claim for LPP to have been substantiated.

Claiming LPP over documents

If you are claiming LPP over documents or parts of documents responsive to a compulsory notice from the OAIC, you will generally be asked in the cover letter of the notice to voluntarily provide the following particulars to your LPP claim for each document:

• document identifiers, such as a unique document number or Doc ID in an electronic document management system
• the date and time of the document
• host references for documents which are attachments
• the type of document, such as email or letter
• whether the document is stored in electronic or hard copy form
• the title of the document
• names of all authors and recipients, including from, to, cc and bcc information, and each person’s positions and employer (if any)
• category of LPP claimed (advice privilege or litigation privilege)
• the name of all persons who claim the right to assert the privilege, including any third parties on whose behalf the privilege claim is made. In case of a third-party LPP claim, you should also provide the identity of the privilege holder, their last known contact details, and an explanation of the circumstances by which the document came into your possession or control
• grounds of claim (brief description of the basis for the privilege claim, such as legal advice provided by inhouse lawyer, prepared for litigation, after [date] when litigation was reasonably anticipated)
• whether LPP is claimed for all or part of the document.

Where only part of the document is subject to a claim of privilege, a redacted version of the document must be provided to the OAIC.

The OAIC has prepared a template schedule which you may wish to use when supplying this information to the OAIC.

Claiming LPP over oral information

If, during a compulsory examination conducted by the OAIC, you seek to claim LPP over information responsive to an OAIC question, you should provide to the OAIC the information specified below during the examination or at such later date as may be specified by OAIC:

• the names of all parties who communicated the information, or to whom the information has been communicated, together with their positions and employer (if any);
• the date of the communication;
• the category of LPP claimed (advice privilege or litigation privilege) and the basis on which the privilege is claimed;
• the name of all persons who claim the right to assert the privilege, including any third parties on whose behalf the privilege claim is made. In case of a third-party LPP claim, you should also provide the identity of the privilege holder, their last known contact details, and an explanation of the circumstances by which the information came into your possession or control; and
• whether the information has been recorded in part or in whole in a tangible form (e.g. electronic or hard copy).

The OAIC’s assessment of a claim of LPP

The OAIC will only accept genuine claims for LPP which have been substantiated by the recipient of the compulsory notice.

At common law, determining whether a communication is subject to LPP requires a consideration of:

• whether there is a legal adviser-client relationship
• whether the communication was for the dominant purpose of giving or receiving legal advice, or for use in connection with actual or anticipated litigation
• whether the advice given is independent
• whether the advice given is confidential.

The OAIC will not accept a claim of LPP where in the OAIC’s view:

• the claim for LPP is not recognised under Australian law, for example, it is not a confidential communication made for the dominant purpose of providing or receiving legal advice, or for the dominant purpose of being provided with professional legal services in relation to actual or anticipated legal proceedings
• where the LPP holder has waived the privilege by acting in a manner that is inconsistent with the maintenance of confidentiality over the material which the privilege is intended to protect, or
• the LPP claim is otherwise not substantiated or valid (for example, where the OAIC believes that the privilege holder has not adequately substantiated their claim for LPP by providing sufficient information to the OAIC, or the information said to be protected by LPP is a communication made for the purposes of committing fraud or a criminal offence).

The OAIC may require you to provide additional details in support of your LPP claim. For example, further details may be sought where you have not provided sufficient information for the OAIC to assess the LPP claim or where the information provided suggests that there may not be a genuine claim for LPP in the circumstances.

We will contact you if you do not provide the requested LPP information or provide insufficient information to make a claim of LPP. Failure to provide the information requested by the OAIC to substantiate a valid LPP claim will generally result in one of more actions listed below:

• lead to further inquiries
• result in the OAIC issuing a further compulsory notice
• lead to action being taken against you for failure to comply with a compulsory notice if material has been withheld without a valid LPP claim.

After making a claim of LPP to the OAIC

If the OAIC does not accept a claim of LPP that you assert, you can:

• withdraw your claim of LPP and provide the information or documents required under the compulsory notice to the OAIC
• withhold any documents or information which you assert are the subject of the LPP claim from the OAIC and, if you do so, you must keep them safe under your custody or control and the documents or information must not be destroyed. A failure to retain the documents or information subject to a disputed LPP claim may amount to non-compliance with a compulsory notice. If you withhold documents from production, the OAIC may make an application to the court as described below
• make an application to the court seeking a declaration that the information or documents are subject to a valid claim of LPP.

If the OAIC does not accept a claim of LPP, it will, if it thinks appropriate:

• request that you provide further information to support your claim
• make an application to the court seeking a declaration that information or documents over which privilege has been claimed is not subject to LPP.

In circumstances where the OAIC is required to make an application to the court seeking a declaration that information or documents over which privilege has been claimed is not privileged, and is successful in obtaining that declaration, the OAIC may seek recovery of its costs.