Rachel Rigg has managed to package one of the oldest asymmetries in employer-side litigation into two wonderfully revealing words: “helpfully shielded”.
In “DSARs : What A Privilege!”, Rigg explains how legal professional privilege can protect communications involving lawyers from disclosure under a subject access request. That is not controversial. Privilege is fundamental to legal advice, and nobody sensible is arguing that an employee should be able to rummage through every confidential exchange between an employer and its solicitor because they have typed DSAR into an email subject line.
The interesting bit is the language around it.
Rigg gives examples including advice about the “strategic approach to a tricky exit”, negotiation packages and potential litigation, then observes that privileged material can be “helpfully shielded from DSAR disclosure”. Elsewhere, her Horsfield Menzies profile proudly advertises expertise in contentious employee subject access requests and says she works with HR and Legal teams so those requests are handled in a way that supports “litigation strategies in play”.
Helpful.
Strategic.
Shielded.
There is an entire employer-side information economy hiding inside those three fucking words.
Blog: The Employee Wants To See The File
A subject access request is supposed to give an individual access to their personal data. In employment disputes that can become especially important because the employee or applicant may know the outcome they experienced without knowing what was said internally while the organisation was producing it. Decisions happen in meetings, inboxes, Teams messages, recruitment systems, HR notes and correspondence the affected person never sees.
That creates an obvious imbalance. The organisation already possesses the records because it created them. The individual asking what happened has to request access to information held somewhere behind the corporate wall.
Rigg knows that contentious DSARs often sit beside litigation. Her professional biography does not treat that as some accidental overlap. She specifically helps organisations coordinate responses with HR and Legal so they fit alongside whatever litigation strategy is already underway.
Again, perfectly understandable as a service.
But fucking revealing as a framing.
The individual is exercising a statutory information right.
The organisation is managing the response as part of litigation strategy.
One party is trying to discover what the record says.
The other already knows what the record says and is paying lawyers to play fucking border patrol.
Blog: “Helpfully Shielded”
Privilege exists for good reason. Clients need to be able to obtain confidential legal advice without assuming that every conversation with their solicitor will later be handed to an opponent. Strip that protection away and the ability to obtain candid legal advice collapses with it.
So privilege itself is not the target here.
“Helpfully shielded” is.
Those words tell you where the writer is standing.
From the perspective of the employee trying to establish how an important decision was made, the fact that relevant strategic discussion cannot be accessed may be frustrating, sometimes enormously so. From the perspective of the organisation defending the dispute, however, the same legal boundary can be rather more cheerful.
Helpful, even.
That little adjective exposes the geometry. One side wants visibility. The other side benefits from lawful opacity.
Rachel does not merely explain that privileged information is exempt.
She describes the shield from the side standing behind it.
The Strategic Approach To A Tricky Exit
Rigg’s example of a “strategic approach to a tricky exit” is particularly beautiful because it sounds like something discovered in the back room of an HR department after everyone has stopped pretending the process is purely about employee development.
A difficult employment relationship exists. Lawyers become involved. Strategy is discussed. Negotiation options are considered. Potential claims hover somewhere outside the conference room. Properly privileged legal advice can remain confidential.
Nothing inherently improper there.
But now move to the other side of the door.
The employee may experience a sequence of meetings, criticisms, performance concerns, proposed agreements or an eventual exit without access to the confidential legal strategy surrounding it. Then, when the individual tries to understand the documentary history through a DSAR, Rigg is available to help the employer navigate the request alongside the “litigation strategies in play.”
That does not make privilege sinister.
It makes information power fucking obvious.
One participant lives through the process.
The other can possess the strategy behind it.
Fishing For Thee
This becomes much funnier when placed beside Rigg’s other writing on DSARs, where employees looking for evidence can be described as conducting “fishing expeditions”.
There is the house view from the other side of the water.
An employee suspects something happened internally and uses a statutory right to look for personal data that might explain it. Perhaps they hope the material assists litigation. This can attract the slightly grubby metaphor of somebody casting around hoping to catch something.
Meanwhile, the organisation already sitting on the lake gets specialist legal help managing the disclosure exercise so it supports litigation strategy, identifies exemptions and protects privileged communications.
The employee is fishing.
The employer apparently owns the fucking marina.
That contrast is why this deserves its own Blog vs Behaviour instalment rather than becoming a sequel to the earlier fishing piece. The issue is not whether employers are entitled to rely upon exemptions or privilege. They plainly are.
The issue is how the same information contest gets described depending upon who controls the information.
Behaviour: The Cepac Case Already Had An Information Problem
My own litigation with Cepac and Page Outsourcing was crawling with information asymmetry from the beginning. The underlying recruitment event happened inside systems I could not see. Page held recruitment records. Cepac held its own records. Internal communications existed outside my view. The entire discrimination claim depended heavily upon reconstructing what information travelled between the recruiter and the client, who knew about my health circumstances and what happened between the telephone screening call and the disappearance of the interview I say had been offered.
I had my side of the call and a contemporaneous WhatsApp saying “Interview next week”. The organisations held the recruitment machinery.
That distinction matters because somebody outside an organisation does not usually possess the elegant corporate audit trail needed to prove what happened inside it. They depend upon disclosure, DSARs and whatever records eventually emerge.
In the Page material, an internal chain carrying the word “Discrimination” appeared with redactions. Other material included the recruiter’s note relating to health disclosure. Those records mattered because the litigation was fundamentally about information: what Page knew, what it recorded, what went to Cepac and what happened afterwards.
Nobody needed a fishing rod.
We needed the fucking file.
The Holder Of The Information Gets To Define The Hunt
There is something structurally absurd about calling an employee’s attempt to locate evidence a fishing expedition when the employer already possesses the pond, the fish and the sonar.
The employee often cannot know the precise document they need because the entire reason for requesting disclosure is that they were not inside the internal conversation. They may suspect an email exists without knowing the sender. They may know a decision changed without knowing which meeting produced it. They may know personal information moved through a business without knowing which system recorded the transfer.
Then the organisation receiving the request has every informational advantage. It knows its systems. It knows the custodians. It can ask Legal. It can identify exemptions. It can review privilege. It can decide what falls within scope, what requires redaction and what explanation accompanies anything withheld.
Again, much of that is necessary data-protection administration.
But perhaps save the fucking fishing metaphors.
The person outside the building is not inherently behaving suspiciously merely because they cannot identify a document whose existence only the people inside the building can verify.
Blog: Support The Litigation Strategy
Rigg’s profile makes the commercial proposition unusually explicit. She assists organisations with contentious subject access requests and coordinates with HR and Legal teams so the response supports “litigation strategies in play”.
That is where the polite fiction that a DSAR sits in some hermetically sealed data-protection universe rather falls apart.
Of course litigation strategy matters.
The organisation knows that whatever it discloses may later appear in pleadings, witness statements or cross-examination. Lawyers would be negligent if they ignored obvious litigation consequences when advising on a contentious request.
But turn the proposition around.
If an employee submits a DSAR partly because litigation exists and hopes the response identifies useful evidence, Horsfield Menzies has an article asking whether this is a fishing expedition.
If the employer manages the same DSAR while expressly considering its litigation strategy, that is professional expertise.
Same dispute.
Same information.
Different fucking adjectives.
The Employee Wants Ammunition, The Employer Gets Ammunition Control
That is the darker institutional reality beneath the friendly data-protection language.
The employee may indeed want ammunition. Obviously. If you believe an organisation discriminated against you, dismissed you unfairly or made some other unlawful decision, evidence is quite useful. Employment Tribunals have stubbornly resisted deciding cases through vibes alone.
The employer also wants an evidential advantage. It wants to know what must be disclosed, what can lawfully be withheld, how redactions should operate, where privilege applies and how the response interacts with the wider litigation.
There is nothing shocking about either side acting strategically.
The contempt-worthy bit is pretending only one side’s search becomes grubby because it belongs to the person with less information.
The employee is portrayed as hunting for ammunition.
Horsfield Menzies is selling ammunition control.
“Helpfully” Is Doing A Lot Of Work
That brings us back to the single most revealing word in Rigg’s piece.
Helpfully.
Privilege can mean information is “helpfully shielded” from DSAR disclosure.
Helpful to the employer.
Helpful to the legal strategy.
Helpful because a potentially awkward strategic discussion remains confidential.
There is no equivalent sentence from the data subject’s perspective saying it is helpful that legislation allows them to uncover personal data which an organisation might otherwise prefer they never see.
The asymmetry lives inside the tone.
This is employer-side legal writing, so nobody should be surprised that the employer is the customer. Horsfield Menzies is not pretending to be Citizens Advice wearing better shoes.
But Blog vs Behaviour exists precisely because the firm simultaneously publishes broad language about fairness, good process, transparency, discrimination and proper workplace culture.
Then one of its lawyers gets onto data access and the strategic correspondence is helpfully shielded.
Fucking marvellous.
Page’s Redactions Made The Theory Less Academic
The redacted Page material is why none of this feels like an abstract seminar in information law.
When you are the person trying to reconstruct an alleged discriminatory recruitment event, a blacked-out section is not aesthetically neutral. It sits exactly where your informational disadvantage already exists. You know something was communicated because a document tells you that much, but the organisation or applicable legal rules control how much of the content becomes visible.
Sometimes there are perfectly legitimate reasons for that. Third-party rights exist. Privilege exists. Statutory exemptions exist. Not every redaction conceals some smoking gun wearing a balaclava.
But that is not the point.
The point is that the organisation possesses both the information and the initial ability to determine how the disclosure rules apply to it. The individual then has to challenge that application if they believe it is wrong.
That makes institutional attitude matter.
If your starting language portrays the requester as fishing while describing employer-side shielding as helpful, readers are entitled to notice which participant the vocabulary instinctively trusts.
The Right To Know Meets The Right To Hide
Data protection and legal privilege inevitably collide because they protect different legitimate interests. Individuals should be able to understand how organisations use their personal data. Clients should also be able to obtain confidential legal advice. Neither principle simply annihilates the other.
The problem starts when that legitimate tension becomes an employer-side sales pitch.
A tricky exit can have a strategic approach.
The strategy can involve lawyers.
The legal discussion can become privileged.
The privileged material can therefore remain outside the DSAR.
Helpful.
Meanwhile, the employee outside the room is wondering why their career just went through a fucking trapdoor.
That does not invalidate privilege.
It demonstrates why an information imbalance should be handled with a little more humility than the phrase “fishing expedition” generally provides.
This Is Not Transparency, It Is Information Management
For all the language surrounding data rights, Rigg’s various pieces are much more revealing when read as a guide to employer-side information management.
Know what the employee can request.
Know where the exemptions sit.
Identify privilege.
Coordinate HR and Legal.
Consider the litigation already underway.
Document the rationale where necessary.
Control the response.
That is competent professional advice.
It is also a reminder that the data subject is not approaching some neutral archive where a helpful librarian hands over the file. They are engaging with an organisation that may simultaneously be defending a claim against them and receiving legal advice about precisely how the information exercise interacts with that defence.
This is why the language matters.
An employee can exercise exactly the right Parliament gave them and still find their motives described as exploratory, tactical or fishing.
The organisation can handle the response with litigation strategy expressly in mind and call that sensible governance.
Apparently strategy becomes respectable once it has billable hours attached.
The Shield Has A Solicitor Standing Behind It
Rigg also recognises that privilege cannot simply become a magic stamp applied to anything inconvenient. The law contains boundaries, and organisations need to be able to justify why an exemption applies rather than treating Legal as a giant black marker hovering over every awkward sentence.
Good.
That safeguard matters precisely because privilege is powerful. Once information legitimately falls inside it, the data subject generally cannot compel access simply because they badly want to know what the lawyers were discussing.
Which makes the professional position behind the shield significant.
The solicitor may know the strategic conversation.
The employer knows the operational history.
The employee may know only what happened to them.
Then everybody arrives at Tribunal and talks solemnly about the burden of proof.
Sometimes justice resembles three people playing poker while one of them owns the fucking deck.
Who Gets To Call It Fishing?
That is ultimately the question linking Rigg’s archive together.
Who gets to search?
Who gets to withhold?
Who gets to strategise?
Whose motives become suspicious?
An employee using a DSAR to look for evidence can be framed as going on a fishing expedition. Rigg’s biography, meanwhile, advertises her ability to make contentious DSAR handling work alongside employer litigation strategy. Her privilege article then observes that certain strategic legal discussions can be “helpfully shielded” from disclosure.
None of those propositions individually describes unlawful conduct.
Together they describe an attitude towards information that is rather harder to disguise.
The employee wants to know what happened.
The employer already knows.
The employee searches.
The employer manages.
The employee fishes.
The employer shields.
Then Horsfield Menzies invoices for explaining the difference.
Helpfully Shielded
Rachel Rigg has actually done TCAP a favour here because the phrase is too good to improve.
Helpfully shielded.
It captures the entire perspective in two words. Information exists, but the legal architecture means the employee may not get to see it. From one side of the dispute that is an obstacle. From the other, it can apparently be helpful.
Privilege itself deserves protection. Confidential legal advice matters. Lawful exemptions matter. Nobody needs to vandalise centuries of legal principle to make the Blog vs Behaviour point.
You simply have to notice who enjoys the information advantage, who sells expertise in preserving it and who gets accused of fishing when they try to understand what the people holding the records already know.
Rachel Rigg says some employees may use DSARs hoping to find evidence. Her professional profile says she helps employers handle contentious DSARs alongside litigation strategies. Her privilege article describes strategic legal material as “helpfully shielded” from disclosure.
Perhaps the problem was never really that somebody was fishing.
Perhaps it was who owned the fucking lake.
Lee Thompson – Founder, The Cummins Accountability Project