1. Under s 55K of the Freedom of Information Act 1982 (the FOI Act), I set aside the internal review decision of the Australian Broadcasting Corporation (ABC) of 13 December 2021. I substitute my decision that:
   • the material the ABC deleted under s 22 is out of scope of the IC review
   • the material the ABC no longer maintains is exempt under s 42 is not exempt
   • the remaining material which the ABC maintains is exempt under s 42 of the FOI Act is exempt under that provision
2. Within 28 days of this decision:
   • the ABC must provide the applicant with a copy of the documents, edited under s 22 of the FOI Act only to the extent necessary to delete material I have found to be exempt or out of scope of the IC review, and
   • the ABC 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 considers the application of legal professional privilege (LPP) to documents held by the ABC. It finds the material is exempt under s 42, except for certain material the ABC no longer maintains is exempt under that provision.

.. the document/s where the relevant ABC decision maker identified and documented the "particular and exceptional circumstances" which the decision maker determined that the ABC should pay [named journalist/staff member]'s costs as notified in the media release [of 11 August 2021] by [the then managing director of the ABC]. > > ... the documents and any recommendations made by others which assisted the ABC decision maker to determine what "particular and exceptional circumstances" existed in order to approve payment of [the journalist]'s costs.

2. In its internal review decision, the ABC identified 13 documents. It released one document in full, 2 documents in part and refused 11 documents in full. In its decision the ABC relied on ss 42 (legal professional privilege exemption), 47C (deliberative processes exemption) and 22 (irrelevant material).
3. The applicant specifically sought IC review of the ABC's decision to delete material under ss 42 and 47C (and s 11A(5)) but not in relation to the deletion of irrelevant material under s 22.[1] On this basis I consider the material the ABC deleted under s 22 is out of scope of the IC review.[2]
4. The ABC no longer presses exemption claims over some material in some documents, and an additional document (Document 14), which it advised are in the public domain.[3] Given the ABC no longer maintains this material is exempt, I consider it should be released to the applicant.
5. The ABC maintains the remainder of the material is exempt under s 42. While the ABC also maintains some of this material is conditionally exempt under s 47C, having regard to the extent of the deletions under s 42 and the context and content of the documents, I consider the issue to be decided in this IC review is whether the remaining material and documents are exempt under s 42.
6. 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.[4]
7. In making my decision, I have had regard to the following:
   • the ABC's decisions and reasons for decisions of 22 October 2021 and 13 December 2021
   • the documents at issue
   • the FOI Act[5]
   • the Guidelines issued by the Australian Information Commissioner under s 93A of the FOI Act[6] to which agencies must have regard in performing a function or exercising a power under the FOI Act,[7] and
   • the parties' submissions.

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 ABC's then managing director also claimed in a public statement that the reason the ABC paid the private legal expenses of its journalist is because of "particular and exceptional circumstances"
   • these are facts and LPP does not apply to publicly stated facts
   • they do not need to know what legal advice was given to the decision maker, just the "particular and exceptional circumstances" they documented for explaining why they agreed to pay an ABC employee's legal and other costs following a Tweet.
   • the respondent should be able to redact all of the advisor consultations and deliberations in order to clearly identify all of the "confluence of factors" which make up the "particular and exceptional circumstances" that led the then ABC managing director to pay the private legal costs for an ABC employee contrary to ABC policy
3. In summary, the ABC submitted:
   • There is no document where then ABC managing director identified the particular and exceptional circumstances that is separate to any legal advice given.
   • Documents 1, 3-9, 11-13 contain legal advice between ABC staff and ABC's in­ house legal team. It is well established that a legal adviser-client relationship can exist between an agency and their in-house legal adviser. The duties of the ABC Legal include, amongst other things, providing legal advice for staff. Other parts of the ABC do not have access to ABC Legal's database of advices as the audience for this information is necessarily limited on a need to know basis.
   • Document 2 contains draft legal advice from independent external lawyers to the ABC on a confidential basis. The communications were created for the dominant purpose of requesting and receiving legal advice.
   • Documents 3, 10-11 and 13 contain legal advice from the staff member's lawyers to the staff member that was shared with the ABC on the basis of common interest privilege. The staff member engaged an independent law firm. The communications between the staff member and their lawyers existed for the dominant purpose of requesting and receiving legal advice. While aspects of the advice were shared with the ABC, the privilege is not waived because the parties had a common interest in the legal advice and anticipated litigation.
4. 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.[8]
5. I have considered the above criteria in the context of the particular communications below.

1. I have reviewed unedited copies of the documents and considered them in light of the parties' submissions. I accept the ABC's submission that Documents 1, 3-9, 11-13 contain communications between ABC staff and ABC's in­ house legal team. It is apparent from the content and context of the communications that they were created for the dominant purpose of giving confidential legal advice relating to actual or anticipated litigation in the context of an independent lawyer-client relationship.
2. On this basis, I am satisfied that the material and documents attract LPP and, unless privilege has been waived, is exempt under s 42(1).

1. 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 Document 2 itself. I am also satisfied that the context and content of the material demonstrates that the communication was for the purpose of giving and receiving confidential legal advice in relation to actual or anticipated litigation and that the remaining factors outlined above are satisfied.
2. On this basis, I am satisfied that this material attracts LPP and, unless privilege has been waived, is exempt under s 42(1).

1. It is apparent from my review of unedited copies of Documents 3, 10-11 and 13, that the documents contain communications involving the staff member's lawyers in relation to actual or anticipated litigation.
2. In summary, the ABC submitted:
   • the staff member engaged an independent law firm, and their communications with their lawyers were for the dominant purpose of requesting and receiving legal advice
   • while aspects of the advice were shared with the ABC, the privilege is not waived because the parties had a common interest in the legal advice and anticipated litigation
3. At common law, litigation privilege attaches to confidential communications passing between a legal adviser or client and a third party if made for the dominant purpose of use in, or in relation to, ongoing or reasonably anticipated litigation. As the FOI Guidelines indicate, a communication from a legal adviser will be confidential if it is known only to the client or to a select class of persons with a common interest in the matter.[9]
4. It appears to me, from the context and nature of the communications, that they were confidential. Some of the communications specifically note they are confidential and are subject to common interest privilege. There is nothing before to suggest that the communications have been disclosed beyond those with a need to know what the communications are, or that they have been disclosed to third parties other than the ABC. The fact that the communications were sent to the ABC does not detract from its character of confidentiality given the circumstances and their common interest in the anticipated litigation.
5. On this basis, I am satisfied that this material attracts LPP and, unless privilege has been waived, is exempt under s 42(1).

1. As noted above at [6] - [7], given the ABC no longer maintains certain material is exempt under s 42, I consider that material is not exempt. However, the remaining material which it maintains is exempt under s 42 is exempt under that provision.

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. In summary, the applicant submitted LPP has been waived. In addition to their submissions summarised above at [12], the applicant submitted the ABC's then managing director disclosed certain information about the matter to Senate Estimates and in public statements.
3. In relation to the applicant's submission regarding statements made at Senates Estimates, the ABC submitted that such statements are subject of parliamentary privilege and do not amount to waiver of LPP.[10]
4. Previous IC review decisions[11] have found information provided to the Parliament cannot be considered because of the operation of s 16(3)(c) of the Parliamentary Privileges Act 1987 (PP Act). Similarly, in this case, for similar reasons, I am satisfied that the responses to Senate estimates are included in proceedings in Parliament as defined in s 16(2) of the PP Act. Accordingly, I am unable to consider the information in making this IC review decision because of the operation of s 16(3)(c) of the PP Act.
5. 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.[12]
6. I have considered the applicant's submissions, as well as the content of the documents at issue, and the parties' submissions. Noting that the communications occurred in a particular context, it is not apparent from my review of the content and context of the documents that the documents which I have found are subject to LPP have been widely distributed. Accordingly, I do not consider that LPP has been waived.

1. The material that the ABC claims is exempt under s 42 of the FOI Act is exempt under that provision.

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.

(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,[13] 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.[14]

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).[15]

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.[16]

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.[17]

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.[18]

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] In their IC review application, the applicant said:

I challenge the three reasons given by the ABC to deny me access to the relevant document, ie.

[2] The ABC noted the applicant has consistently advised they do not seek legal advice and suggested the documents are out of scope of the request. Taking into account the context of the applicant's comments, including as summarised at [12], I do not accept the ABC's submission.

[3] In its submission of 27 May 2022, the ABC advised this material is comprised of material in Documents 1, 8, and Document 14, which are in the public domain. The ABC advised it no longer claims ss 42 or 47C over the 'discrete' material, and agrees to granting access to this material.

[6] 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).

[10] In this respect the ABC referred to The Australian and Department of Industry, Science, Energy and Resources (Freedom of information) [2022] AICmr 23; Philip Morris Limited Philip Morris Limited and British American Tobacco Australia Limited and Department of Health and Ageing [2011] AATA 215 (30 March 2011) where the Tribunal held that a government response to the Senate fell within the wide range of matters contemplated bys 16(2) and that the applicants could not rely on the government response to show that LPP has been waived: [215]-[218]. The ABC further advised the Full Court of the Federal Court of Australia upheld that conclusion in British American Tobacco Australia Limited v Secretary, Department of Health and Ageing [2011] FCAFC l 07[2011] FCAFC 107; , (2011) 195 FCR 123 [48}[49].

[11] The Guardian Australia and Department of Climate Change, Energy, the Environment and Water (Freedom of information) [2022] AICmr 70; The Australian and Department of Industry, Science, Energy and Resources (Freedom of information) [2022] AICmr 23.

[13] 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.

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

[18] 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.