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Freedom of Information - whether documents exempt from production - legal professional privilege - privilege has not been waived - parties have agreed on some documents - remainder of documents before the Tribunal - documents exempt - decision under review affirmed

Freedom of Information Act 1982, s 42

AWB v Cole (No 5) [2006] FCA 1234; (2006) 155 FCR 30

Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501

DSE (Holdings) Pty Ltd v InterTAN Inc [2003] FCA 1191; (2003) 135 FCR 151

Esso Australian Resources Ltd v Commissioner of Taxation [1999] HCA 67; (1989) 201 CLR 49

Grant v Downs [1976] HCA 63; (1976) 135 CLR 674

1. These reasons concern the issue whether the seven documents remaining in dispute after discussions between the parties, in respect of which exemption has been claimed by the respondent under section 42 of the Freedom of Information Act 1982 (the FOI Act), are exempt from production as exempt documents because they are of such a nature that they would be privileged from production in legal proceedings on the ground of legal professional privilege in circumstances where there has been no waiver of the privilege.

1. On 21 November 2013 the applicants made a request for access to documents under the FOI Act from the respondent. On 6 December 2013 a joint revised request was lodged by the applicants and a further revised request on 22 January 2014. The respondent made a decision refusing access to documents on practical refusal grounds under the Act.
2. On 18 March 2014 the applicants sought review view of the respondent's decision by the Information Commissioner, who on 16 February 2015 decided not to undertake the review on the basis that it was desirable for review to be conducted by this Tribunal.
3. The applicants lodged an application for review with this Tribunal on 2 March 2014. On 21 May 2015 the Tribunal remitted the decision back to the respondent for reconsideration within 30 days of the order.
4. The respondent reconsidered their position and by letter dated 19 June 2015 set out its varied decision.
5. When the matter came before me for hearing, after some discussion and argument on legal issues, the matter was adjourned on the basis that the respondent would further consider its position, with a view to making available more documents and providing a more detailed schedule of documents relevant to the FOI request. The information to be provided in the new schedule included further descriptions and details of the nature and dates of the documents which were not produced.
6. As the result of several reconsiderations by the respondent, and an agreement between the parties, there remains for the consideration of this Tribunal, a dispute as to seven of the documents in respect of which exemption is claimed under section 42 of the Act.
7. These documents are described in Exhibit A and for identification purposes they are documents numbered 433, 435, 436, 437, 438, 440, and 532.
8. The seven documents are referred to in an email from the Australian Government Solicitor to the Tribunal of 19 August 2015. The information in respect of which the legal professional privilege is claimed in those documents is shaded and not all of the contents of the documents are subject to the claim for exemption. Redacted versions of these seven documents have been provided to the applicants.

1. The test to be applied under section 42 of the Act is that which applies under the common law which involves:
   • (a) examination as to whether there is a lawyer client relationship;
   • (b) whether the document in question was created for the dominant purpose of giving or receiving legal advice or for use in actual or anticipated litigation;
   • (c) whether the advice is independent; and
   • (d) whether the advice is confidential.
2. The relevant principles are set out in Grant v Downs [1976] HCA 63; (1976) 135 CLR 674; Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501; Esso Australian Resources Ltd v Commissioner of Taxation [1999] HCA 67; (1989) 201 CLR 49 and cases there referred to.
3. The evidence indicates that the outstanding documents and briefs to counsel have been kept confidential and there is no claim of waiver in respect of them.
4. It is not disputed that communications and information between an agency and its qualified legal advisers for the purpose of giving or receiving advice will be privileged whether the legal advisers are salaried officers, provided that they are consulted in a professional capacity in relation to a professional matter and the communications arise from the relationship of lawyer client. There is no requirement that an in-house lawyer hold a practising certificate provided that the employee is acting independently in giving the advice.
5. Of particular relevance in the present case is the principle that when considering legal professional privilege a broad approach is to be taken as to what is included in the scope of the privilege. It has been observed that when considering the reach of legal professional privilege it is necessary to recognise that the obligation of the lawyer to advise, once retained, is "pervasive" and that it would be rarely that one could, in any particular case with a degree of confidence, say that communication between client and lawyer, where there is a retainer requiring legal advice and the directing of the legal advice, was not connected with the provision or requesting of legal advice. The courts have cautioned that too literal or analytic a requirement of identifying or isolating the legal advice as being only express advice about the law would be to apply undue formalism and undermine the operation and extent of the privilege: see the remarks of Allsop J in DSE (Holdings) Pty Ltd v InterTAN Inc [2003] FCA 1191; (2003) 135 FCR 151 and those of Young J in AWB v Cole (No 5) [2006] FCA 1234; (2006) 155 FCR 30 at [48].
6. I now turn to the particular documents in issue.
7. The seven documents in issue are a series of emails between officers of the ATO, ATO lawyers and external Counsel. I have inspected these documents, and considered whether the redacted parts of the emails are in fact, exempt under the Act. My reasons follow.

1. This is a document relating to the gathering of information required by external Counsel and clearly comes within the classification of a communication covered by the privilege in relation to the gathering of information in relation to legal advice. It is exempt.

1. Only minor parts of this document are claimed as exempt and in my view those parts are covered by the above principles concerning information incidental to briefing of Counsel and are therefore exempt. It should be noted that a mobile telephone number was also redacted from this email; I agree that this is exempt under the provisions of s47F of the Act.

1. The part of this document which is claimed to privileged falls within the principles referred to in the earlier paragraphs and is exempt.

1. Again, the part of this document in respect of which privilege is claimed is part of the chain of communications incidental to the gathering of information for supply to counsel and is exempt.

1. The part of this document claimed to be exempt considers material requested in the course of seeking and obtaining legal advice and concerns a request for information from external Counsel and is exempt.

1. The parts of these documents which are claimed to be exempt concern communications between lawyers in relation to the conduct of the litigation, engagement of Counsel, and proposed action relating to that which is so closely connected with the obtaining and giving of legal advice such that it is exempt.

1. The part of the document in respect of which privilege is claimed relates to the need to brief Counsel, and the instructions for the briefing of Counsel and in my view is exempt.

1. In relation to Documents 433, 435, 436, 437, 438, 440 and 532, I uphold the claims for exemption and affirm the decision under review.
2. In relation to the remainder of the documents, in respect of which the parties have reached agreement, the parties are directed to provide a draft consent order to the Tribunal by 4pm Thursday 24 September 2015.

I certify that the preceding 25 (twenty -five) paragraphs are a true copy of the reasons for the decision herein of The Hon. Brian Tamberlin QC, Deputy President

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