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Insurance adjuster denied an individual his right to access to his personal information

PIPEDA Case Summary #2008-397

[Principle 4.9; paragraph 9(3)(a)]

Lessons Learned

  • An organization that makes a claim of litigation privilege when denying a request of access must provide the OPC with sufficient particulars to enable the Office to confirm a claim of privilege.
  • Insurance adjusters acting on behalf of insurers are not exempt from responding to requests for access to personal information because they are acting on an insurer’s behalf.

An individual who was in a car accident requested access to his personal information from an insurance adjuster. The adjuster had been retained by the insurer of other victims in the accident. The individual was refused access and asked to redirect his request to the insurer. He eventually obtained some of his personal information once held by the adjuster from the lawyer representing other parties to the accident and the adjuster, but certain information was withheld on the grounds of solicitor-client privilege.

This Office intervened and requested more details about the withheld information, specifically how it met the requirements of solicitor-client privilege. However, the adjuster’s legal representative did not provide the Office with the requested information. The Assistant Commissioner determined that, because she had not been provided with sufficient information to properly substantiate the privilege claim, she could not conclude that the privilege had been properly applied. Thus, the complainant’s right to access his information had been denied.

The following is an overview of the investigation and the Assistant Commissioner’s findings.

Summary of Investigation

The complainant was involved in a motor vehicle accident involving several people. Subsequent to the accident, the insurer of another party involved in the accident hired an insurance adjuster firm to investigate. Several months later, the adjuster was advised by the complainant’s solicitor that the complainant had obtained legal counsel and that the complainant was anticipating litigation.

The complainant wrote to the adjuster nine months later and requested a copy of all his personal information. The adjuster responded that the file was closed. It recommended that the complainant redirect his correspondence and all future inquiries to the insurer that had hired the adjuster.

Not satisfied with the response, the complainant filed a denial of access complaint with the Office against the adjuster.

In its defense, the adjuster contended that it had not denied the complainant access to his personal information. Rather, it claimed that it merely directed him to the party for whom the information had specifically been collected.

In the meantime, the complainant obtained some of his personal information from the legal firm that was by then representing two of the other accident victims as well as the interests of the insurance adjuster.

Withheld from the documentation the complainant obtained from the legal firm were five reports. The law firm claimed that it withheld the reports on the grounds of solicitor-client privilege and that they were confidential work product prepared for the dominant purpose of being submitted to a solicitor for advice with respect to litigation. It stated that all of these reports were prepared after the advice that the complainant had retained legal counsel and litigation was contemplated.

The legal firm provided this Office with the name of the requestor of each of the withheld reports, as well as each report’s preparation date and purpose. Our Office sought further clarification from the legal firm on the commission dates and of the purposes of three of the disputed reports. Specifically, our Office requested how the purposes of three reports over which solicitor-client privilege had been asserted differed from the purposes of another series of reports that had been released to the complainant without a claim of privilege. A deadline was set for the firm to provide additional details supporting its claim of privilege by sworn affidavit, signed by the party that had provided the mandate to the insurance adjuster for the preparation of reports.

The deadline passed and, although this Office sent follow-up requests for the information necessary to validate the asserted claim of privilege on the three withheld reports, the requested information was never received from the legal firm.

Findings

Issued December 18, 2008

Application: Principle 4.9 stipulates that upon request, an individual shall be informed of the existence, use and disclosure of his or her personal information and shall be given access to that information. An individual shall be able to challenge the accuracy and completeness of the information and have it amended as appropriate. Paragraph 9(3)(a) states that an organization is not required to give access to personal information if the information is protected by solicitor-client privilege.

In making her determinations, the Assistant Commissioner deliberated as follows:

  • The insurance adjuster refused to process the complainant’s request for his personal information, citing the reason that the file was closed. The Act clearly does not make provisions for denial of access on this basis.
  • Litigation privilege can attach to insurance adjuster’s reports, provided that they were prepared for the dominant purpose of reasonably anticipated or actual litigation. Under paragraph 9(3)(a), an organization can withhold access to personal information if it is subject to and is protected by this privilege.
  • The complainant obtained his personal information from the law firm who was representing the adjuster and one of the defendants in a civil suit pursued by the complainant.
  • Some reports were withheld, allegedly protected by solicitor-client privilege. All of these disputed reports were prepared after the date that litigation would have reasonably been anticipated, which was established based on a letter to this effect from the complainant’s solicitor.
  • While the adjuster cannot be required to provide this Office with the documents over which privilege is claimed, it still has to prove the claims of privilege it asserts. Thus, we asked for evidence to support the claim that three of the disputed reports had, as their dominant purpose, the goal of assisting in the defense’s preparation against the complainant’s legal claim. We asked that the information be provided by sworn affidavit, signed by the party that had provided the mandate to the adjuster to prepare them.
  • The adjuster failed to provide this Office with the requested information about the alleged privileged documents and it did not, accordingly, succeed in proving to us the claims of privilege it made with respect to these documents. Since the Assistant Commissioner was unable to ascertain that the respondent had properly relied on subparagraph 9(3)(a) for this disputed information, she found that Principle 4.9 had not been upheld.  

Conclusion

The Assistant Commissioner concluded that the complaint was well-founded.

Post-Script

The Commissioner filed a Notice of Application in the Federal Court under section 15 of the Act, seeking a Court order confirming or denying the organization’s claim of privilege over the documents in issue and requiring the organization to provide the complainant with the documents in the event the documents were not found to be privileged.

Shortly after commencing the Application in Court, the organization opted to release the documents in issue rather than establish its claim of privilege, and the matter was resolved prior to a hearing. The organization released to the complainant all the available information to which he was entitled under the Act.  Accordingly, the Commissioner discontinued her Application against the organization.

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