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You are here: BAILII >> Databases >> Irish Data Protection Commission Case Studies >> Case study 12: Access requests to solicitors for copies of files. [2011] IEDPC 12 (2011) URL: http://www.bailii.org/ie/cases/IEDPC/2011/[2011]IEDPC12.html Cite as: [2011] IEDPC 12

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Case study 12: Access requests to solicitors for copies of files. [2011] IEDPC 12 (2011)

My Office received a number of complaints in relation to the failure of solicitors to comply with access requests from former clients. Often the reason cited by the solicitor for not complying with the access request is that they have a common law lien on all documents and papers that constitute work carried out on the client's behalf for which payment remains outstanding.

This issue, where a common law lien on a client's file is considered to apply, is one that we have dealt with and we are not in any way unsympathetic to the scenario for the solicitor in question where a former client is seeking not to pay outstanding fees which are the subject of a dispute.  Equally, in the context of a file handled by a solicitor's practice, it is undoubtedly the case that there is far more information on a file than what could be considered to be the requester's personal data and no requirement to provide any information which is not strictly the personal data of the requester arises. However, the Data Protection Acts, which transpose the EU Directive on Data Protection, do not provide any exemption to the provision of the personal data of a person in these circumstances.

A solicitor who has been engaged by an individual is a data controller of that individual's personal data which is subsequently processed. Personal information held by a data controller falls to be released in response to an access request unless a valid exemption as provided for under Sections 4 and 5 of the Data Protection Acts can be relied upon.

The complaints were resolved to the satisfaction of the complainants and the solicitors concerned on the basis of the following guidance from my Office:

• The exemption provided for under Section 5(1)(g) of the Data Protection Acts, which relates 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" applies to personal information held in respect of a solicitor's capacity as legal adviser to its clients (not the requester) rather than information held in their capacity, or former capacity, as legal representative for the requester. 
• In relation to letters from the solicitor acting for another client, it is possible that the restriction to the right of access in Section 5(1)(g) of the Data Protection Acts may apply to any personal data of the requester contained within them.
• Regarding letters generated by a solicitor on behalf of the requester who was a client, a large number of which may have already been sent to them in the normal course of events, i.e. when generated, its difficult to see how a claim of privilege under Section 5(1)(g) would apply where the letters have previously been sent to the requester.
• It is difficult to anticipate that Section 5(1)(g) would apply to attendance notes created by the solicitor in relation to their client. Where notes relate specifically to the client and were created in that context, we would deem the personal data contained in those notes to be valid for release.