Source: Privacy Commissioner
When people go to see a lawyer, they need to know that what they say will be kept confidential. They also need to know that the lawyer’s advice to them is confidential. This means that they can be open and honest with their lawyer, and the lawyer can give them free and frank advice.
The first type of legal professional privilege, called ‘solicitor/client privilege’ or ‘legal advice privilege’, protects this confidentiality. If a requester asks for information about themselves, but that information is contained in communications between a lawyer and their client undertaken for the purpose of seeking or giving advice, then the organisation can withhold it.
The second type of privilege is called ‘litigation privilege’. It protects communications between a party to litigation and any other person, and communications between the party’s lawyer and any person. It also applies to documents prepared by, or at the request of, the party or party’s lawyer. Among other things, it enables lawyers and their clients to gather evidence and plan tactics without the risk of tipping their opponents off to what they are going to do.
Litigation privilege requires:
1. that the document(s) come into existence when litigation was either already under way or was ‘reasonably apprehended’ (meaning it’s a serious or realistic prospect) and
2. the ‘dominant purpose’ for creating the document must have been to prepare for the legal proceeding.
Legal professional privilege arises in other areas of New Zealand law. For instance, in the disclosure process (the process where information is exchanged between litigation parties before a hearing so each side is adequately aware of what the case entails). However, unlike in the disclosure process, if you are refusing to release documents due to litigation privilege under the Privacy Act, you don’t need to identify the individual documents being withheld, describe their contents, or list them.
Privacy Act 2020 reference
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53. Other reasons for refusing access to personal information |
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(d) the disclosure of the information would breach legal professional privilege |
Case Notes:
Further information
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Can legal professional privilege apply to communications between a client and an in-house lawyer? |
Yes. Other New Zealand law currently allows for this and therefore the Privacy Act does too. In Contractor complains Police withheld report, the Privacy Commissioner formed a view that the Police were entitled to withhold a report that had been prepared by a Police legal adviser, on the basis that it was covered by solicitor/client privilege. The legal adviser held a current practising certificate, and he prepared the report in his capacity as a legal adviser in order to assist the Police in deciding whether to lay a particular charge. The Privacy Commissioner noted that ‘the fact that he was an in-house solicitor did not alter the ability to withhold the information under this ground.’ |
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Can legal professional privilege be waived? |
Yes. Legal professional privilege can be waived by the client – that is, the client can choose to release the information that is privileged. Sometimes, a client can act in a way that waives privilege, even though he or she did not strictly mean to do so. For example, the Ombudsman dealt with a case where the requester wanted a copy of a letter on his employment file that contained legal advice to the employer. Although the employer withheld a copy of the letter itself, claiming that it was subject to legal professional privilege, it did allow the requester to read the letter and take notes from it. The Ombudsman decided that in the circumstances the employer had waived the privilege by allowing the requester to see the information at issue (Case No 975 (1987) 8 CCNO 81). The Privacy Commissioner has followed the same approach. Importantly, the employer in this case waived privileged because they voluntarily disclosed the contents of the letter to the requestor. Privilege cannot be waived if disclosure is involuntary, mistaken, or without the consent of the person who has the privilege. |
Updated June 2026
Original source: https://nz.mil-osi.com/2026/06/04/breach-legal-professional-privilege/