1. Under s 55K of the Freedom of Information Act 1982 (the FOI Act), I set aside the decision of the Repatriation Medical Authority (RMA) of 2 December 2021. I substitute my decision that:
   • the material deleted under ss 22, 47C, 42 and 47F in the Agenda and Minutes (referred to below at [7]) is out of scope of the IC review
   • the RMA has taken all reasonable steps to search for documents in scope of the request and no further documents[1] can be found or exist
   • the additional documents which RMA identified during the review, and which the RMA maintains are exempt under s 42 of the FOI Act, are not exempt under that provision
2. Within 28 days of this decision:
   • the RMA must provide the applicant with a copy of the additional documents, and
   • the RMA must advise whether it has fully implemented my decision or whether it will be seeking review of the decision by the Administrative Review Tribunal.

1. This decision concerns searches and the application of legal professional privilege (LPP). While it accepts the RMA took all reasonable steps to find documents within scope of the request, it considers the RMA waived LPP in draft documents of a legal practitioner by publishing a legal advice with similar content on its website. It finds that by failing to provide a sufficient explanation for why LPP is not waived in these circumstances, the RMA has not met its onus of establishing that its decision is justified.

1. As the RMA noted in its submissions:
   • The RMA is a body corporate established by s 196A of the Veterans' Entitlements Act 1986 (VEA).
   • It is constituted by 5 part-time Professors appointed by the Minister of Veterans' Affairs under s 196L of the VEA.
   • It's main function is the determination of Statements of Principles (SOPs) which are statutory instruments setting out factors which connect various injuries and diseases with the circumstances of military service.[2]
2. In 2013, the RMA posted a copy of an advice from a barrister dated 13 March 2013 on its website. That advice concerned the meaning of "disease, injury or death "within the meaning of s 5D of the VEA.
3. In their FOI request the applicant requested access to:

'all information associated with this 'advice' including but not limited to any terms of reference or suchlike, and emails correspondence, discussion documents, notes, or minutes.'

4. In its decision, the RMA identified 3 documents within scope of the applicant's request. It decided to release 2 documents in part (an Agenda and Minutes of an RMA meeting) with material redacted under ss 22 (relevance), 42 (legal professional privilege), 47C (deliberative process) and 47F (personal privacy). The RMA also released a signed copy of the advice, which it advised is identical to the unsigned copy of the advice published on the RMA's website.
5. During the IC review, the applicant confirmed that they were only seeking review of whether the RMA took reasonable steps to search for documents within scope of the request.[3] RMA subsequently conducted further searches for documents by making enquiries with their external lawyers. The RMA located an additional 8 documents, which it exempted in full pursuant to s 42.
6. The applicant subsequently confirmed that the scope of the IC review is searches and s 42 in relation to the additional documents.[4]
7. Accordingly, I consider that ss 22, 47C and 47F are out of scope of the IC review, and the issues to be decided in this IC review are whether:
   • the RMA has taken all reasonable steps to search for documents in scope and additional documents do not exist or unable to be found (s 24A)
   • whether the additional documents the RMA identified during the IC review are exempt under s 42 of the FOI Act
8. In an IC review of an access refusal decision, the agency bears the onus of establishing that its decision is justified or that I should give a decision adverse to the applicant.[5]
9. In making my decision, I have had regard to the following:
   • the RMA's decision and reasons for decisions of 2 December 2021
   • the documents at issue
   • the FOI Act[6]
   • the Guidelines issued by the Australian Information Commissioner under s 93A of the FOI Act[7] to which agencies must have regard in performing a function or exercising a power under the FOI Act,[8] and
   • the parties' submissions.

Whether additional documents are unable to be found or do not exist (s 24A)

1. Before an agency or minister can refuse a request for access to a document under s 24A, it must have taken all reasonable steps to find the document, and be satisfied that the document cannot be found or does not exist.
2. In their IC review application, the applicant claimed information is missing because (in summary):
   • The date of the advice postdates the 'minutes of the hearing' [Item 1]
   • The minutes of the meeting at which the RMA decided it needed this advice has not been included. It can reasonably be assumed the need for this advice should have been discussed given the RMA had operated without a need for the advice for 20 years. Given this advice may potentially restrict how the RMA (5 practitioners eminent in fields of medical science) defines "disease", it would have been important to discuss the terms of the request for the advice, and who the RMA should approach to provide this advice should have been discussed in some detail. [Item 2]
   • No information was provided in relation to what triggered the need for this advice in the first instance. [Item 3]
   • Given the "advice" document postdates the date of the meeting it would have been reasonable to table the final copy of the advice, not the least to confirm it was identical to the draft. [Item 4]
   • No general correspondence between the RMA and person who provided the advice has been provided, but more specifically information or correspondence in relation to a requirement for the advice in the first instance or information or correspondence surrounding the final advice. [Item 5]
   • No information in relation to payment for the advice was provided. [Item 6]
3. 15. In response to the applicant's submissions, the RMA stated:
   • With respect to Item 1 it would appear from the searches that only the final advice rather than a draft was saved in TRIM.
   • Items 2 and 4 appear to be based on the applicant's assumptions about the RMA's practices and procedures in 2012 and 2013 rather than contentions based on fact.
   • As to Item 3, an FOI request is a request for documents rather than information.
   • With respect to Items 5 and 6, given that searches and indeed the content of the advice indicates that a legal firm acted on behalf of the RMA in seeking the advice, it is to be expected that there would be no correspondence directly occurring between the senior counsel and the RMA.
4. During the IC review the OAIC advised the RMA of its view that it would be reasonable for the RMA to make enquiries with the external law firm to determine if additional records exist, in accordance with s 6C of the FOI Act. In response the RMA advised it made enquiries with the external legal firm, which yielded a further 8 documents within scope of the applicant's request.
5. Despite the RMA identifying additional documents, the applicant maintains that the RMA has not taken all reasonable steps to search for documents in scope of the request. The applicant also provided further submissions which I have considered below.
6. The applicant submitted there are inadequacies with the RMA's systems as indicated by a law firm having documents on record which the RMA is unable to find, and suggested the OAIC should instruct the RMA to search for the 8 documents on their systems. I do not consider that it would be reasonable in the circumstances for the RMA to conduct additional searches for documents that have already been identified.
7. The applicant submitted the RMA should contact former staff to obtain their views on the matter. Noting the passage of time since the publication of the advice in 2013, I accept the RMA's submission that legal advice is not widely discussed or disseminated within the RMA, and the only employee that could have had knowledge of legal advice matters[9] is the former Registrar and Legal counsel, who was the original decisionmaker in respect of this FOI matter and conducted the original searches. I do not consider that it would be reasonable for the RMA to conduct further searches by contacting former staff in the circumstances.
8. I have considered the parties' submissions and the searches evidence. In my view, there is no evidence to support the applicant's submission that the RMA has unlawfully destroyed Commonwealth records. Taking into account the nature of the request and the passage of time, I consider the RMA conducted reasonable searches for documents in scope, including requiring the contracted law firm to undertake searches, which identified 8 additional documents in scope of the request.
9. Taking into account the terms of the request, the nature of the documents, the additional searches and results of those searches, I am satisfied that the RMA has taken all reasonable steps to search for documents in scope of the request and additional documents cannot be found or do not exist.

1. I consider that the RMA has taken all reasonable steps to search for documents in scope of the request and additional documents cannot be found or do not exist.

Legal professional privilege exemption (s 42)

1. A document will be exempt under s 42 if it is of such a nature that it would be privileged from production in legal proceedings on the ground of LPP (s 42(1)) and LPP has not been waived (s 42(2)).
2. In summary, the applicant submitted:
   • The RMA has decided the additional documents are LPP under s42, when in fact they are only "conditionally exempt", and the public interest test first needs to be applied before it can be decided they are LPP.
   • At common law, no privilege arises in respect of a communication made for a purpose that is contrary to the public interest; that is, where the communication is made in furtherance of an illegal or improper purpose, whether or not the legal adviser knows of that purpose.
   • The advice is a foundation element of every SOP, which have factors 'at least one of which must be met' for a claim to succeed. This suggests it would be in the public interest for this information to be released, given SOP factors are considered in the vast majority of claims
   • The decision maker is obliged to explain how the release of the requested information will cause any harm.
   • The documents contain names and non- substantive information which cannot be withheld under s 42. The applicant referred to Taggart and the Civil Aviation Safety Authority [2016] AATA 327 (20 May 2016) in support of this contention.
     1. In summary, the RMA submitted:
   • The 8 additional documents are the working documents of a legal practitioner employed by an external legal firm engaged by the RMA.
   • Those documents were prepared for the dominant purpose of providing legal advice to the RMA.
   • They are of such a nature that they would be privileged from production in legal proceedings on the ground of legal professional privilege.
   • In Taggart portions of documents, for the most part, the subject lines, salutations and signature blocks of emails attaching or containing legal advice were found not to be within the exemption under s 42 of the FOI Act. There are no emails concerned here. In this case a claim of privilege is made over the entirety of the documents and editing is not practicable.
   • The applicant has not provided any evidence of their allegations regarding illegality or impropriety.
   • The harm in disclosure of documents subject to advice privilege is that it inhibits the candour of dealings between a client and their legal practitioner.
3. The applicant submitted the public interest test first needs to be applied before the RMA can decide the documents are subject to LPP. The legal professional privilege exemption (s 42) is an exemption within Division 2 of Part IV of the FOI Act. These exemptions are non-conditional and not subject to an overriding public interest test. Therefore, if a document meets the criteria to establish it is exempt under s 42, it is exempt. There is no additional obligation to weigh competing public interests to determine if the document should be released.[10]
4. The applicant also contended that the decision maker is obliged to explain how the release of the requested information will cause any harm. However, the FOI Guidelines state that the 'real harm' criterion is not an element of the common law doctrine of legal professional privilege or a feature of the FOI Act.[11] While government has historically, through convention, referenced the test as a relevant discretionary factor in determining FOI requests[12], as noted in the FOI Guidelines[13], and similar to previous FOI decisions[14], an agency's or minister's decision on the 'real harm' criterion is not an issue that can be addressed in an IC review. This is because the Information Commissioner cannot decide that access is to be given to a document, so far as it contains exempt matter.[15]
5. The FOI Guidelines relevantly explain that, at common law, determining whether a communication is privileged requires consideration of the following:
   • whether there is a legal adviser-client relationship
   • whether the communication was for the purpose of giving or receiving legal advice, or use in connection with actual or anticipated litigation
   • whether the advice given is independent, and
   • whether the advice given is confidential.[16]
6. As noted in previous IC review decisions and the FOI Guidelines, the existence of an adviser-client relationship is usually straightforward to establish where advice is received from an independent external legal adviser. I am satisfied that the independent legal adviser-client relationship is well demonstrated in the material in the documents which are draft advices from an external lawyer.
7. While I note that advice was subsequently published, I am satisfied that the context and content of the material demonstrates that the communications (at the time) were for the purpose of giving confidential legal advice and that the remaining factors outlined above are satisfied. I acknowledge the RMA's submissions that harm may result from the disclosure of privileged material generally.

1. On this basis, I am satisfied that this material attracts LPP and, unless privilege has been waived, is exempt under s 42(1).

1. Subsection 42(2) of the FOI Act provides that a document is not exempt under s 42(1) if 'the person entitled to claim LPP in relation to the production of the document in legal proceedings waives that claim'. Further information is set out in Annexure A.
2. More generally, the question of whether privilege has been waived requires the examination of whether an earlier disclosure is inconsistent with the maintenance of the confidentiality protected by the privilege. Relevantly, the FOI Guidelines explain privilege may be waived in circumstances where:
   • the communication in question has been widely distributed,
   • the content of the legal advice in question has been disclosed or
   • a person has publicly announced their reliance on the legal advice in question in a manner that discloses the substance of the legal advice.[17]
3. The applicant's submissions in relation to LPP are summarised above at [24]. They did not specifically address this issue.
4. The RMA advised the further eight documents are the working documents of a legal practitioner employed by an external legal firm engaged by the RMA. It submitted it has not waived LPP in the documents, however it did not explain why I should accept this in circumstances where it has subsequently published an advice containing similar information on its website.
5. I have considered the content of the documents at issue, and the published advice. According to the schedule of documents which the RMA provided, the draft documents are dated the same date or predate the published advice. It is apparent that the published advice and draft documents are (to differing extents) similar in content. Noting the similarity between the drafts and published advice, it appears that the substantive content of the legal advice has been disclosed.
6. The RMA has not, in my view, provided enough details to sufficiently explain why LPP has not been waived in these circumstances. The RMA has not advised of any significant differences between the drafts and the published advice. Nor has it provided contextual information about its communications with the external lawyer/s about the drafts, or the circumstances in which edits (if any) were made.
7. While I appreciate this may be due to the passage of time since the provision of the advice, nonetheless, in my view, based on the information before me, the publication of the advice appears to be inconsistent with the maintenance of confidentiality in the drafts (which are similar). Accordingly, I consider LPP has been waived.

1. The material that the RMA claims is exempt under s 42 of the FOI Act is not exempt under that provision because the RMA has not met its onus under s 55D.

Relevant provisions of the FOI Act, FOI Guidelines, and decisions

Section 11A(4) of the FOI Act states the agency or Minister is not required by this Act to give the person access to the document at a particular time if, at that time, the document is an exempt document.

Section 24A of the FOI Act requires that an agency take 'all reasonable steps' to find a requested document before refusing access to it on the basis that it cannot be found or does not exist.

There are two elements that must be established before an agency or minister can refuse a request for access to a document under s 24A:

• the agency or minister must have taken all reasonable steps to find the document, and
• the agency or minister is satisfied that the document cannot be found or does not exist.

The Act is silent on what constitutes 'all reasonable steps'. The meaning of 'reasonable' in the context of s 24A(1)(a) has been construed as not going beyond the limit assigned by reason, not extravagant or excessive, moderate and of such an amount, size or number as is judged to be appropriate or suitable to the circumstances or purpose.

Agencies and ministers should undertake a reasonable search on a flexible and common-sense interpretation of the terms of the request. What constitutes a reasonable search will depend on the circumstances of each request and will be influenced by the normal business practices in the agency's operating environment or the minister's office. At a minimum, an agency or minister should take comprehensive steps to locate documents, having regard to:

• the subject matter of the documents
• the current and past file management systems and the practice of destruction or removal of documents, and
• the record management systems in place
• the individuals within an agency or minister's office who may be able to assist with the location of documents, and
• the age of the documents.[18]

(1) A document is an exempt document if it is of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege.

(2) A document is not an exempt document because of subsection (1) if the person entitled to claim legal professional privilege in relation to the production of the document in legal proceedings waives that claim.

(3) A document is not an exempt document under subsection (1) by reason only that:

(a) the document contains information that would (apart from this subsection) cause the document to be exempt under subsection (1); and

(b) the information is operational information of an agency.

As discussed in the FOI Guidelines and in IC review cases,[19] a document will be exempt under s 42 if it is of such a nature that it would be privileged from production in legal proceedings on the ground of legal professional privilege (s 42(1)) and privilege has not been waived (s 42(2)).

Legal professional privilege protects confidential communications between a lawyer and a client from compulsory production. The FOI Guidelines relevantly explain that, at common law, determining whether a communication is privileged requires consideration of the following:

1. whether there is a legal adviser-client relationship
2. whether the communication was for the dominant purpose of giving or receiving legal advice, or use in connection with actual or anticipated litigation
3. whether the advice given is independent, and
4. whether the advice given is confidential.[20]

The FOI Guidelines explain that a communication may have been brought into existence for more than one purpose but will be privileged if the main purpose of its creation was for giving or receiving legal advice (legal advice privilege), or for use in connection with actual or anticipated litigation (litigation privilege).[21]

In relation to whether a legal adviser client relationship exists, the FOI Guidelines relevantly explain:

A legal adviser-client relationship exists where a client retains the services of a lawyer for the purpose of obtaining professional advice. If the advice is received from an independent external legal adviser, establishing the existence of the relationship is usually straightforward.[22]

The FOI Guidelines further explain that the following factors are relevant to establishing whether a legal adviser-client relationship exists:

• the legal adviser must be acting in their capacity as a professional legal adviser
• the dominant purpose test must be satisfied
• the giving of the advice must be attended by the necessary degree of independence
• the advice must be confidential
• the fact that the advice arose out of a statutory duty does not preclude the privilege from applying
• whether the lawyer is subject to professional standards can be relevant.[23]

If the communications were confidential communications between a professional legal adviser and client for the dominant purpose of giving or receiving legal advice, they will attract the privilege.[24]

If a party to an IC review is unsatisfied with an IC review decision, they may apply under s 57A of the FOI Act to have the decision reviewed by the Administrative Review Tribunal (ART). The ART provides independent merits review of administrative decisions and has power to set aside, vary, or affirm an IC review decision.

An application to the ART must be made within 28 days of the day on which the applicant is given the IC review decision (see s 18(1) of the Administrative Review Tribunal Act 2024 and rule 5(3) of the Administrative Review Tribunal Rules 2024). An application fee may be payable when lodging an application for review to the ART. Further information is available on the ART's website (www.art.gov.au) or by telephoning 1800 228 333.

Making a complaint to the Commonwealth Ombudsman

If you believe you have been treated unfairly by the OAIC, you can make a complaint to the Commonwealth Ombudsman (the Ombudsman). The Ombudsman's services are free. The Ombudsman can investigate complaints about the administrative actions of Australian Government agencies to see if you have been treated unfairly.

If the Ombudsman finds your complaint is justified, the Ombudsman can recommend that the OAIC reconsider or change its action or decision or take any other action that the Ombudsman considers is appropriate. You can contact the Ombudsman's office for more information on 1300 362 072 or visit the Commonwealth Ombudsman's website at http://www.ombudsman.gov.au.

[1] No further documents to the documents identified in the RMA's decision and the additional documents identified during the IC review.

[2] The RMA advised SOPs can be determined by the Authority on its own account or after an investigation requested by a person or body outlined in section 196E(1) of the VEA, including a service member or veteran or an organisation representative of them. SOPs are the exclusive point of reference for assessing whether any hypothesis connecting a medical condition to service is reasonable or whether a decision-maker can be reasonably satisfied about the connection between a condition and service.

[3] Email from the applicant of 16 May 2025.

[4] Email from the applicant of 9 July 2025.

[7] See, Office of the Australian Information Commissioner_, Guidelines issued by the Australian Information Commissioner under_ s 93A of the Freedom of Information Act 1982 (FOI Guidelines).

[9] The RMA clarified this is other than to know that there was a publicly available copy of the advice on the RMA website.

[10] As noted in the FOI Guidelines at [5.9] - [5.11].

[11] FOI Guidelines at [5.177] - [5.178].

[12] FOI Guidelines at [5.177], noting that this view is in line with the advisory notice issued by the then Secretary of the Attorney-General's Department dated 2 March 1986 (the 'Brazil Direction'), following a Cabinet decision in June 1985. The phrase 'real harm' distinguishes between substantial prejudice to the agency's affairs and mere irritation, embarrassment or inconvenience to the agency.

[14] See 'AWX' and Department of Defence (Freedom of information) [2025] AICmr 109 (11 June 2025) at [40]. See also 'APA' and Australian Electoral Commission (Freedom of information) [2024] AICmr 232 (29 October 2024).

[18] FOI Guidelines at [3.88] - [3.89]. For further information, see FOI Guidelines at [3.85] - [3.94]; 'RD' and Comcare (Freedom of information) [2019] AICmr 61; 'PK' and Department of the Prime Minister and Cabinet (Freedom of information) [2018] AICmr 65; 'PI' and Department of Human Services (Freedom of information) [2018] AICmr 62; 'PF' and Department of Human Services (Freedom of information) [2018] AICmr 59; 'OP' and Department of Home Affairs (Freedom of information) [2018] AICmr 43; Josh Taylor and Prime Minister of Australia (Freedom of information) [2018] AICmr 42.

[19] Generally, see FOI Guidelines at [5.144] - [5.182]; 'VO' and Northern Australia Infrastructure Facility (Freedom of information) [2020] AICmr 47; 'VH' and Australian Taxation Office (Freedom of information) [2020] AICmr 43; 'PQ' and Australian Taxation Office (Freedom of information) [2019] AICmr 1; 'PO' and Australian Federal Police (Freedom of information) [2018] AICmr 72; C_hris Lewis and Australian National University (Freedom of information_) [2018] AICmr 63; Rex Bashford and Department of Jobs and Small Business (Freedom of information) [2018] AICmr 55 and 'OL' and Department of Home Affairs (Freedom of information) [2018] AICmr 36.

[23] FOI Guidelines at [5.154] (footnotes omitted).

[24] AWB v Cole (No. 5) [2006] FCA 1234; (2006) 155 FCR 30 at 44; Waterford v Commonwealth [1987] HCA 25; (1986) 163 CLR 54 at 95.