FREEDOM OF INFORMATION - exemptions - secrecy provision - applicant is performing the duties of an officer - duties of an officer to be given wide interpretation - personal affairs - disclosure not unreasonable if person involved has no objections - legal professional privilege - need to establish factual elements - public access exemption not relevant - deletion of exempt matter or irrelevant material not applicable - decision affirmed for certain documents - decision set aside for certain documents - those documents remitted to the respondent for reconsideration in accordance with the reasons for the decision.

Freedom of Information Act 1982 (Cth.) - ss 12, 22, 38, 41, 42

Income Tax Assessment Act 1936 - s 16

Australian Institute of Marine and Power Engineers v Secretary, Department of Transport [1986] FCA 443; (1986) 13 FCR 124

Canadian Pacific Tobacco Co Limited v Stapleton [1952] HCA 32; (1952) 86 CLR 1

Illawarra Retirement Trust v Secretary, Department of Health and Ageing (2005) 143 FCR 431

Re Collie and the Deputy Commissioner of Taxation [1997] AATA 713; (1997) 45 ALD 556

SZHWY v Minister for Immigration and Citizenship [2007] FCAFC 64; (2007) 159 FCR 1

1. Mr Iain Young is a senior manager in the Serious Non-Compliance section of the Queensland office of the Australian Taxation Office. In that capacity he played a part in a decision taken in 2003 to commence prosecution proceedings against a Brisbane solicitor, Mr Ian Collie, alleging breaches by Mr Collie of provisions of the Taxation Administration Act 1953. The essence of the case was that Mr Collie had failed to comply with notices issued pursuant to s 264 of the Income Tax Assessment Act 1936 (the ITAA 1936). The prosecution was undertaken by the Commonwealth Director of Public Prosecutions (CDPP).
   1. Mr Collie was successful in the proceedings and the complaints were dismissed with costs. In May 2005 Mr Collie commenced civil proceedings in the Supreme Court of Queensland against Mr Young and three other officials seeking damages, including "punitive, aggravated and exemplary damages" for malicious prosecution or misfeasance in public office. Neither the Commonwealth of Australia nor the Commissioner of Taxation is a party to those proceedings although the Commonwealth has undertaken to indemnify Mr Young and the other defendants in relation to the costs of the proceedings and any judgement awarded. Minter Ellison, a well-known Brisbane law firm, was retained by the Commonwealth to act on behalf of all defendants. Mr David O'Brien was the partner within that firm who had the conduct of the proceedings on behalf of all defendants.
   2. More recently Mr Young has taken the view that there is a conflict between his interests in the litigation and the interests of another defendant such that he considers that he should be represented by other lawyers. We should make it plain that we express no opinion about the correctness or otherwise of this view.
   3. In May 2005, and before the commencement of the Supreme Court proceedings, Mr Young received a letter from lawyers acting for Mr Collie. That letter suggested that Mr Collie had obtained access, pursuant to the Freedom of Information Act 1982 (Cth) (the FOI Act), to information from the Australian Taxation Office which suggested that another officer had expressed the view that Mr Young had engaged in conduct tantamount to a vendetta against Mr Collie.
   4. In May 2006 Mr Young made application for access under the FOI Act to certain specified documents concerning a meeting held on 30 June 2003. In July 2006 he expanded the scope of his request. It is necessary to set out the expanded list in full as one of the arguments of the Commissioner is that some of the documents that have been identified contain information that is not relevant to the request. The request was in these terms:

"1. A copy of any document, considering, touching upon, recording or commenting upon the allegation that I engaged in a vendetta, engaged in harassment, force, pressuring or bullying personnel in Fraud Investigations or the CDPP resulting from a meeting between CDPP, Fraud Investigations and auditors of 30 June 2003.

1. A copy of all correspondence sent by Lynette Chilcott to Judy Lind relating to the meeting of 30 June 2001 including that document which evidences the sending of a File Note authored by Colin Hunt of 29th of August 2003.
2. A copy of the E mail dated on or about 1 February 2005 from Judy Lind to Lynette Chilcott asking if there is anything on the record from the 30 June 2003 meeting that shows the views put forward by myself.
3. Copies of all resulting correspondence emanating from the E mail in 3 above.
4. A copy of any document received or brought into existence as a result of communications by or to the CDPP which touches upon, considers (implicitly or explicitly) or comments upon actions by myself relating to the conduct of SNC officers (including myself) in relation to the meeting of the 30th June 2003."
5. On 19 September 2006 a delegate of the Commissioner of Taxation determined that there were 18 documents that answered the description in the request for access and that some of them were wholly or partially exempt from release under one or more of the provisions of the FOI Act. Mr Young sought an internal review pursuant to s 54 of the FOI Act of this decision. No decision was made on that review within the period of 30 days after receipt of Mr Young's request and on 9 November 2006 Mr Young commenced the present proceedings in the Tribunal.
6. As a consequence of the endeavours of the Commissioner and his advisers there are now considerably more documents that have been identified as falling within the scope of Mr Young's requests. At the outset of the hearing Mr McLeod, counsel for the Commissioner, tendered a schedule identifying 74 documents, some of which had been, or were to be, released to Mr Young. Those released were documents 17, 41, 44, 49, 72 and 73. In addition Mr Young accepts that in relation to certain documents - 59, 60, 61 and 62 - exemptions have been made out.
7. Those that remain in issue are said to be exempt, either wholly or partially, on the basis of one or more of s 12 (Publicly available documents), s 22 (Deletion of exempt or irrelevant material), s 38 (Secrecy provisions), s 41 (Personal privacy), or s 42 (Legal professional privilege) of the FOI Act. For reasons that will be apparent we propose to examine the claims under s 38, s 41 and s 42 before dealing with s 22 claims. First however, we ought note some fundamental propositions regarding Mr Young's claim.
8. By virtue of s 11 of the FOI Act Mr Young has a legally enforceable right to obtain access in accordance with the Act to documents of the Commissioner of Taxation other than documents that are exempt. Mr Young's reasons for seeking access are immaterial to the merits of his request.
9. By virtue of s 61 of the FOI Act the Commissioner has the onus of showing that a decision adverse to Mr Young should be made.

1. The Commissioner contends that documents 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 16, 18, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 42, 43, 45, 46, 47, 48, 50, 51, 53, 54, 55, 56, 58, 68, 69, 71, and 74 are exempt documents, either wholly or in part, by virtue of s 38 of the FOI Act. That section, so far as it is presently relevant, provides:

"(1) Subject to subsection (1A), a document is an exempt document if:

(a) disclosure of the document, or information contained in the document, is prohibited under a provision of an enactment; and

(ii) this section is expressly applied to the document, or information, by that provision, or by another provision of that or any other enactment.

(1A) A person's right of access to a document under section 11 or 22 is not affected merely because the document is an exempt document under subsection (1) of this section if disclosure of the document, or information contained in the document, to that person is not prohibited by the enactment concerned or any other enactment."

Included in the provisions specified in Schedule 3 to the FOI Act are ss 16(2), (4F), (4FA), 4JB) and (5C) of the Income Tax Assessment Act 1936 (ITAA 1936). Of those only s 16(2) of the ITAA 1936 is directly relevant however other sub-sections of s 16 have a relevance having regard to the arguments of the parties. The section, as far as is presently material, provides:

(1) In this section, unless the contrary intention appears:

officer means a person who is or has been appointed or employed by the Commonwealth or by a State, and who by reason of that appointment or employment, or in the course of that employment, may acquire or has acquired information respecting the affairs of any other person, disclosed or obtained under the provisions of this Act or of any previous law of the Commonwealth relating to income tax.

(2) Subject to this section, an officer shall not either directly or indirectly, either while he is, or after he ceases to be an officer, make a record of, or divulge or communicate to any person any information respecting the affairs of another person acquired by the officer as mentioned in the definition of officer in subsection (1).

(2A) Subsection (2) does not apply to the extent that the person makes the record of the information, or divulges or communicates the information, in the performance of the person's duties as an officer.

(4) Nothing in this section shall be deemed to prohibit the Commissioner, a Second Commissioner, or a Deputy Commissioner, or any person thereto authorized by him, from communicating any information to:

(a) any person performing, in pursuance of any appointment or employment by the Commonwealth, any duty arising under any Act administered by the Commissioner of Taxation, for the purpose of enabling that person to carry out any such duty;

1. There seems to us to be no question that each of the documents claimed to be exempt by virtue of s 38 would ordinarily answer that description. They are documents in respect of which the obligation in s 16(2) of the ITAA 1936 is owed by officers and thus disclosure of those documents is prima facie prohibited under a provision of an enactment specified in Schedule 3 to the FOI Act. Mr Young advances two ingenious arguments to overcome that prima facie position.
2. Each argument is based upon the proposition that Mr Young, in defending himself against the allegations made against him by Mr Collie, is performing his duties as an officer. That is so, it is said, because Mr Young requires the documents for the purposes of the Supreme Court proceedings and those proceedings are the consequence of the prosecution of Mr Collie in relation to the s 264 notices. It is a curiosity of this case that Mr Young, in his position as an officer, is entitled to have access to and to use the documents in that capacity. But it is not in that capacity that he seeks access. The Commissioner contends that in defending himself in the Supreme Court he is not performing his duties as an officer, he is acting in a personal capacity.
3. Mr Young's arguments were put in this way in his written submissions:

"What the Tribunal must determine is whether a disclosure for the purpose of the defence of an ATO officer against a claim alleging improper exercise of power conferred upon the officer in the course of performing that officer's duties, is itself, either (a) an act done in the course of performing the duties on behalf of the Commissioner (ss16(2A)) or (b) a communication for the purpose of enabling [Mr Young] to carry out his duty under the Act (par. 16(4)(a)."

1. The second argument may be readily disposed of. The argument, as we understand it, is that the Tribunal (standing in the shoes of the primary decision-maker), is not prohibited from communicating information to Mr Young by way of release of documents because he is performing a duty arising under an Act administered by the Commissioner and communicating that information is for the purpose of enabling Mr Young to carry out that duty.
2. Whatever may be the duty that Mr Young is performing in resisting the Supreme Court proceedings it is not a duty arising under any Act administered by the Commissioner. In those circumstances we do not consider that s 16(4) of the ITAA 1936 has any application to the present case.
3. The other argument has more substance. Mr Young submits that the content of the "duties of an officer" is to be widely interpreted. Mr Young relies upon this passage of the judgement of Sir Owen Dixon in Canadian Pacific Tobacco Co Limited v Stapleton[1] where his Honour was discussing an earlier, but similar, manifestation of s 16 of the ITAA 1936:

"But, in any case, I think that the words 'except in the performance of any duty as an officer' ought to receive a very wide interpretation. The word 'duty' there is not, I think, used in a sense that is confined to a legal obligation, but really would be better represented by the word 'function'. The exception governs all that is incidental to the carrying out of what is commonly called 'the duties of an officer's employment'; that is to say, the functions and proper actions which his employment authorizes."

1. Reliance is also placed upon the decision of Gummow J (when a member of the Federal Court) in Australian Institute of Marine and Power Engineers v Secretary, Department of Transport.[2] There his Honour was required to consider an argument that the respondent Secretary, having received information from the Commissioner of Taxation (and thereby come within the definition of "officer") was precluded by s 16(2) of the ITAA 1936 from providing that information to the applicant, an industrial organisation. Having noted the remarks of Sir Owen Dixon set out above and the holding of the Full Court of the Federal Court that s 16(2) "ought to receive a very wide interpretation"[3], his Honour rejected the argument, saying[4]:

"The functions and proper actions authorised, and indeed required, by the engagement of an officer in the defined sense, include observance of and compliance with obligations arising at common law and in equity, save as excluded or supplanted by statute: see P W Hogg, Liability of the Crown in Australia, New Zealand and the United Kingdom (1972), pp 147-160. These general law obligations would include those of care and skill (Carpenter's Investment Trading Co Ltd v The Commonwealth (1952) 69 WN (NSW) 175 at 178), fidelity (Reading v Attorney-General [1951] UKHL 1; [1951] AC 507) and confidentiality (The Commonwealth v John Fairfax and Sons Ltd [1980] HCA 44; (1980) 147 CLR 39 at 50-51). Also included, in my view, in the exception is what is appropriate to discharge or satisfy requirements or duties imposed pursuant to procedures existing under statutes other than the Tax Act."

1. To similar effect, Branson J. said in Donnelly v Davison[5]:

"[11] The authorities appear to me to reflect a view that the duties of a taxation officer within the meaning of s 16(2) of the [ITAA 1936] may extend beyond that which 'it is necessary to do ... for the purpose of carrying into effect the provisions of [the ITAA 1936]' within the meaning of s 16(3)."

1. The Commissioner's argument did not cavil with the proposition that the scope of an officer's duties was to be broadly interpreted; rather, it was said, that in the present case the duty was spent. That argument focussed upon the duty that Mr Young performed in issuing the s 264 notices to Mr Collie.
2. It may well be that the Commissioner is correct in saying that the s 264 duty is spent. We need not decide the point because whether it was spent or not we are of the view that Mr Young is performing a duty as an officer in defending the Supreme Court proceedings.
3. It will be recalled that the Commonwealth has agreed to indemnify Mr Young in the Supreme Court proceedings and that those proceedings allege against Mr Young that he was guilty of malicious prosecution and misfeasance in public office. The Commonwealth is vicariously liable for the torts of its servants[6] where the servant committed the tort in the course of employment. It seems to us not to matter that Mr Collie has chosen not to join the Commonwealth as a party to the Supreme Court proceedings; Mr Young could join the Commonwealth as a third party if there were any suggestion of refusal of indemnity. But in any event Mr Young is indemnified by the Commonwealth so that the burden of any damages or costs awarded will fall upon the Commonwealth. Thus, in our view, the Commonwealth has two "interests" at stake in the proceedings - rebutting allegations that its servants were guilty of malicious prosecution and misfeasance in public office, and, in doing so, protecting its financial interests.
4. Were Mr Young not to defend the Supreme Court proceedings he would be acting contrary to the interests of the Commonwealth and likely to be in breach of the obligations spoken of by Gummow J in Australian Institute of Marine and Power Engineers v Secretary, Department of Transport.[7] In our view Mr Young, who denies the allegations of wrongdoing made against him in the Supreme Court proceedings, is under a duty, arising from his employment as an officer, to defend the proceedings in the interests of the Commonwealth. That being so, the prohibition in s 16(2) of the ITAA 1936 does not apply to him to the extent that he makes copies of material, arguably relevant to his defence of the Supreme Court proceedings, for the purposes of those proceedings.
5. But despite that conclusion, s 38(1) of the FOI Act would, without more, have the effect of making the documents exempt documents because they satisfy the tests for exemption in that subsection. It is at this point that it becomes necessary to consider s 38(1A) of the FOI Act.
6. That subsection was inserted by the Freedom of Information Amendment Act 1991 (Cth). The Explanatory Memorandum to the Bill for that Act explained the purpose of the new subsection in these terms:

"53. New subs 38(1A) is inserted by clause 28 ... to ensure that a person is not denied access under s 38 of the FOI Act to a document merely because the secrecy provision to which s 38 applies prohibits disclosure of the document to other persons but not to that person. For example, if an enactment containing a s 38 secrecy provision also contains a provision allowing disclosure at the discretion of the agency and if the agency exercises the discretion to disclose a document to a person who has made an FOI request for the document, the document is not exempt from disclosure under s 38 to that person."

1. The operation of the subsection is illustrated by the decision of Branson J in Illawarra Retirement Trust v Secretary, Department of Health and Ageing.[8] In that case her Honour was concerned with two documents described as the "DAT report" and the "SCS record". The documents had been produced by the Department of Health and Ageing and the Aged Care Standards and Accreditation Agency respectively. The second respondent, Dr Duncan, was the daughter of a woman who, prior to her death, had been resident in an aged care hospital operated by the applicant, Illawarra Retirement Trust. Dr Duncan had sought access to the DAT report and the SCS record under the FOI Act. Initially the access request had been refused on the basis that each of the documents was an exempt document. However, following a number of internal reviews, a decision had been made to release the DAT report, with some material deleted, to Dr Duncan. An internal review had confirmed the earlier determination that the SCS record was an exempt document for the purposes of the FOI Act.
2. The Trust and Dr Duncan applied to the Tribunal for review of the two decisions. The Tribunal affirmed both of the decisions under review. The Trust appealed the decision to the Court and Dr Duncan brought a cross-appeal. The question for determination was whether, on a proper construction of s 38(1A) of the FOI Act and Div 86 of the Aged Care Act 1997 (Cth), Dr Duncan's right of access to the SCS record under ss 11 and 22 of the FOI Act was not affected by its classification as an exempt document under s 38(1) of the FOI Act. Sections 86-2 and 86-3 of the Aged Care Act were specified in Schedule 3 of the FOI Act. Section 86-2 of the Aged Care Act provided:

(a) the person makes a record of, discloses or otherwise uses information; and

(c) the information was acquired by the person in the course of performing duties or exercising powers or functions under this Act.

(e) conduct that is otherwise authorised under this or any other Act."

1. Section 86-3 of the Aged Care Act authorised the Secretary of the Department to disclose protected information to specified classes of people or in specified circumstances, in particular to a person who was, in the opinion of the Secretary, expressly or impliedly authorised by the person to whom the information relates to obtain it. Dr Duncan contended that s 86-2(1) did not prohibit disclosure of protected information; it merely set out the consequences of disclosure. Dr Duncan further placed reliance on ss 86-2(2) and 86-3 which permit the disclosure of protected information in prescribed circumstances.
2. Her Honour said this[9]:

"[56] When the Secretary discloses protected information in circumstances authorised by s 86-3 of the Aged Care Act, the disclosure is made under the Aged Care Act, not under the FOI Act. Section 86-3 has no relevance, in my view, to the operation of s 38(1A) of the FOI Act as it does not affect a person's right to access to a document under the FOI Act. It is only the Secretary, acting under the Aged Care Act, who s 86-3 exempts from the prohibition contained in s 86-2. No other person may rely on the exception contained in s 86-3.

[57] I note incidentally that a person who uses protected information disclosed to him or her under s 86-3 is guilty of a criminal offence if he or she uses it for a purpose other than the purpose for which the information was disclosed (s 86-5(c)). I did not hear argument on the significance of s 86-5 of the Aged Care Act for Dr Duncan should she wish to disclose information obtained by her pursuant to s 86-3 of the Aged Care Act. I express no view on that question.

[58] As is mentioned above, s 86-3 gives the Secretary authority to disclose protected information to certain classes of people and in certain circumstances. In the events that happened in this case, the second DAT report decision was made by a delegate of the Secretary. In the course of reaching the second DAT report decision, the delegate of the Secretary exercised the authority vested in the Secretary to disclose to Dr Duncan the protected information contained in the edited DAT report on the basis that, in her opinion, Dr Duncan was a person authorised by Mrs Reynolds to obtain it. As is mentioned above, this disclosure was a disclosure authorised by the Aged Care Act; it was not the granting of access to a document under the FOI Act.

[59] The delegate of the Secretary did not exercise the authority given to the Secretary by s 86-3 of the Aged Care Act in respect of the protected information contained in the unedited DAT report or in the SCS record. Disclosure of protected information in the unedited DAT report and in the SCS record remains prohibited by s 86-2(1) of the Aged Care Act, under a provision of an enactment specified in Sch 3 to the FOI Act. The unedited DAT report and the SCS record are therefore exempt documents under s 38 of the FOI Act.

[60] A decision of the Secretary under s 86-3 of the Aged Care Act is not a 'reviewable decision' within the meaning of Div 85 of the Aged Care Act. The Aged Care Act does not provide that applications may be made to the Tribunal for review of decisions made under s 86-3 of the Aged Care Act (see s 25 of the AAT Act). As the unedited DAT report and the SCS report are exempt documents under s 38 of the FOI Act, the Tribunal had no power to decide that access to them, so far as they contained exempt matter, was to be granted."

1. In our view, s 38(1A) operates in this way in the instant case. In defending the Supreme Court proceedings Mr Young is performing his duty as an officer. Thus documents arguably relevant to the defence of those proceedings may be disclosed to him as an exception, created by s 16(2A) of the ITAA 1936, to the general prohibition in s 16(2) of that Act. The documents that answer the description of arguable relevance would ordinarily be exempt documents under s 38(1) of the FOI Act however because disclosure of the documents to Mr Young is not prohibited by another enactment, viz. s 16(2A) of the ITAA 1936, Mr Young's legally enforceable right of access to the documents is not affected.
2. Mr McLeod, counsel for the Commissioner, submitted that it was relevant in considering this aspect of the case to have regard to Mr Young's evidence that the documents were not all required to consider his defence to the Supreme Court proceedings. We do not consider the point is good. If Mr Young has a right of access, his purpose in seeking access is immaterial. We must consider the documents to determine whether they are arguably relevant to his defence of the Supreme Court proceedings.
3. We should add that if Mr Young, having obtained access, were to make use of the documents for any purpose beyond the performance of his duties (and there is no suggestion that he would) he would no longer be entitled to the protection in s 16(2A) of the ITAA 1936.
4. It follows that we are satisfied that the documents, or those parts of them subject to a claim for exemption, are not exempt by virtue of s 38 of the FOI Act provided that they are arguably relevant to the defence of the Supreme Court proceedings. In determining what documents are arguably relevant we propose to adopt the traditional test applied in applications for discovery i.e. we would regard a document as being arguably relevant if it "would, or would lead to a train of enquiry which would, either advance [Mr Young's] own case or damage that of his adversary".[10] It thus becomes necessary for us to consider the documents in order to make that judgment.
5. Some of the documents for which an exemption is claimed under s 38 of the FOI Act record communications made in the period leading up to the prosecution of Mr Collie. Those documents are arguably relevant to the Supreme Court proceedings since they detail the steps taken in connection with the prosecution. Contemporaneous documents seem to us to be plainly relevant to the issues of motivation for the prosecution, the essential subject matter of the Supreme Court proceedings.
6. In that category we would put documents 4, 5, 20, 21, 23, 25, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, and 38 (or parts of them) over which a s 38 claim is raised in whole or in part. We would not regard these documents as being exempt under s 38 of the FOI Act.
7. There are as well documents that may be described sufficiently as ex post facto analyses of the failed prosecution. These documents record factual matters in the lead up to the prosecution and observations about the motivation for prosecution. They are arguably relevant. In this category we would put documents 1, 2, 3, 6, 7, 8, 9, 11, 16, 18, 22, 24, 26, 27, 39, 43, 45, 46, 47, 48, 50, 51, 53, 54, 55, 56, 58, 68, 69, 71, and 74 or those parts of them over which a s 38 exemption is claimed.
8. Having read documents 40 and 42 we do not consider that access to those parts of them over which a s 38 exemption is claimed could be arguably relevant in the sense in which we have used it. We are satisfied that the claim to exemption in relation to these documents is made out.
9. That leaves for consideration the claim in respect of document 10. This document is described in the Commissioner's schedule of documents as a letter "from taxpayer's solicitor to applicant as an ATO Officer". We do not agree with the part of that description that adds the qualification "as an ATO Officer". The letter was sent to Mr Young care of the Australian Taxation Office but it is marked "Private". But despite that error in description we are satisfied that it could not possibly be relevant to the Supreme Court proceedings. We would uphold the claim in respect of document 10.
10. The conclusion that Mr Young is not denied access to these documents by virtue of s 38 of the FOI Act raises the question of the potential for a claim under s 41 of the FOI Act. The operation of that section has not been considered by the Commissioner and Mr McLeod has submitted that the matter ought be remitted to the Commissioner for consultation in accordance with s 27A of the FOI Act, the course adopted by Deputy President Forgie in, coincidentally, Re Collie and the Deputy Commissioner of Taxation.[11] Section 43(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth) provides a basis for a decision in those terms.

1. The result, so far as the claim for exemption under s 38 is concerned, is that we would:
   • (a) affirm the decisions in relation to documents 10, 40 and 42;
   • (b) set aside the decisions in relation to documents 1, 2, 3, 4, 5, 6, 7, 8, 9, 11, 16, 18, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 43, 45, 46, 47, 48, 50, 51, 53, 54, 55, 56, 58, 68, 69, 71 and 74;
   • (c) remit to the respondent for reconsideration in accordance with these reasons the decisions in relation to documents 1, 2, 3, 4, 5, 6, 7, 8, 9, 11, 16, 18, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 43, 45, 46, 47, 48, 50, 51, 53, 54, 55, 56, 58, 68, 69, 71 and 74.

1. Section 41(1) of the FOI Act provides as follows:

"(1) A document is an exempt document if its disclosure under this Act would involve the unreasonable disclosure of personal information about any person (including a deceased person)."

1. The only document where s 41 was relied upon by the Commissioner was document 12. It was said in the Commissioner's Statement of Facts and Contentions[12] that Mr Young had conceded that this document was exempt at a telephone directions hearing on 8 January 2007. If that were so he appears to have withdrawn the concession given that his written submissions put in issue the correctness of the decision to claim exemption.
2. It appears that the document concerns another officer of the Australian Taxation Office. It is not clear that that officer has been consulted. Mr Young's material suggests that the officer has no objection to Mr Young receiving his personal information. The practical solution seems to us to be to set aside the decision in relation to document 12 and to remit the matter to the Commissioner for the purpose of consulting with the other officer. If, as Mr Young suggests, the officer has no objection that that would seem to remove any suggestion of "unreasonable disclosure" of that officer's personal information.

1. By virtue of s 42(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 grounds of legal professional privilege.
2. Here the Commissioner contends that documents 9, 13, 14, 15, 16, 17, 18, 19, 39, 45, 52, 57, 64, 65, 66, 67, 69 and 70 are exempt documents in whole or in part, on this basis. A recent, and, with respect, admirably succinct, statement of the ambit of legal professional privilege by Lander J in SZHWY v Minister for Immigration and Citizenship[13] explained the ambit of the privilege in these terms:

"[15] The privilege protects from disclosure 'communications made confidentially between a client and his legal adviser for the purpose of obtaining or giving legal advice or assistance': R v Bell; Ex parte Lees [1980] HCA 26; (1980) 146 CLR 141 at 144; Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 at 550. When the communication is contained in a document, that document must have been created for the dominant purpose of obtaining legal advice for it to be protected by privilege: Esso Australia Resources Ltd v Federal Commissioner of Taxation [1999] HCA 67; (1999) 201 CLR 49 at 65-66. The privilege can arise also where the confidential communication is for the dominant purpose for use in existing or reasonably contemplated judicial or quasi judicial proceedings. A third class of legal professional privilege arises to protect confidential communications between a person or a person's legal practitioner and a third party if made in existing or reasonably anticipated judicial or quasi judicial proceedings and the dominant purpose of the communication related to those proceedings."

1. The Commissioner relies upon the affidavit of Mr William Day,[14] the Australian Taxation Office General Counsel, to establish the factual elements required to found a claim for privilege. Mr Young does not put in issue the matters deposed to by Mr Day, but he contends that the evidence does not go far enough in establishing the factual elements. Additionally he says that documents 13 and 14 are not shown to be exempt because the evidence does not establish that the author of the documents, a lawyer employed in the Australian Taxation Office, was employed in the role of lawyer.
2. For the purposes of determining the questions that arise in relation to this head of exemption we have examined the documents and, where necessary, have drawn inferences from them on the basis of the evidence of Mr Day.

1. This document is a letter "about matter affecting the ATO [Senior Non-Compliance] Audit team in Brisbane"; however that part of it over which privilege is claimed records, according to Mr Day:

"... the status and conclusions of legal advice sought and received from Counsel and the Australian Government Solicitor about a claim against the Tax Office in a matter involving third party taxpayers and phoenix company arrangements unrelated to the Supreme Court proceedings."

That description is not entirely accurate however reference to the document satisfies us that it conveys the substance and effect of confidential legal advice in another matter and is thus properly the subject of a claim for legal professional privilege.

1. These documents are diary notes (made by different authors) of a meeting held on 12 October 2005 involving Mr Dominic Sheil, "a lawyer employed by the Tax Office with conduct of the Supreme Court proceedings". Mr Day describes the purpose of the meeting as being:

"... to discuss the terms of subrogation and representation for the Applicant in relation to the Supreme Court proceedings."

1. Mr Young criticizes the description of "purpose" and submits, correctly in our view, that the purpose of the meeting, when used in this sense, is not relevant. Rather, he submits, it is the subject matter of the meeting that will determine a claim for privilege. He submits, as well, that Mr Sheil has not been shown to have been acting as a lawyer in the conduct of the meeting.
2. We do not find it necessary to decide the question on the basis of the second of these arguments because assuming that Mr Sheil was acting qua lawyer, the documents do not record communications made in the course of giving or receiving legal advice or assistance. Rather they seem to us to record observations made by Mr Sheil about the consequences for Mr Young were he to pursue an internal grievance against another officer.
3. We are not then satisfied that documents 13 and 14 are exempt by virtue of s 42 of the FOI Act.

1. These documents are file notes of a meeting held on 24 October 2005 involving the Commonwealth's external lawyer and various officers from the Australian Taxation Office. The documents plainly record legal advice given and are exempt.

1. The claim in respect of document 17 is no longer pressed by the Commissioner and it has been released.
2. Document 16 is a letter from Mr Young to the Commissioner, Mr D'Ascenzo. That part over which a s 42 exemption is claimed relates to matters discussed at the meetings on 12 October 2005 and 24 October 2005. Given our earlier conclusions we would allow access to that part of document 16 that deals with the 12 October meeting and uphold the claim for exemption in relation to those parts that deal with the 24 October meeting.
3. Document 18 appears to be the transcript of an interview between Mr Young and Mr Peter Dawson, described as an "Independent Consultant". Mr Day says of the parts over which privilege is claimed that they

"record and recount the privileged information discussed in the 12 October 2005 and 24 October 2005 meetings ..."

1. Having read the document we are unable to agree that that is an accurate description of the matters set out from . 9 of page 2 to . 5 of page 3. The balance of the extract on page 3 starting after "... and at their own cost" does seem to us to record privileged communications and we would uphold the claim in respect of that part between those words and Mr Dawson's statement commencing "The language used ...". Similarly the passages on pages 4 and 5 over which a s 42 claim is made record legal advice and are properly the subject of a claim for exemption.

1. This document is described by Mr Day as an email from an officer in the Tax Office to Mr Curran, "a lawyer in the Tax Office [which] provides confidential instructions about the factual background to the letter of demand that initiated the Supreme Court proceedings".
2. Examination of the document supports that description. We would uphold the claim for exemption. Mr Young elicited from Mr Day that current practising qualifications as a lawyer were not required for an employee occupying the position occupied by Mr Curran, but that seems to us not to matter. Mr Curran was, at the very least, the conduit for the obtaining of advice based upon the instructions contained in the document.

1. This document was prepared by Mr Young, seemingly for the purpose of briefing a senior officer. There is a passage in the body of the report at the top of page 2 over which privilege is claimed. It concerns matters of indemnity. Mr Day's affidavit says nothing about this passage. We do not regard that passage as attracting privilege. We would reject the claim for exemption in relation to this passage.
2. There is a chronology attached headed "Brief Background". The first eight entries (May 2005 to October 2005) on page 2 of the chronology are the subject of a claim for s 42 exemption. The first entry in issue, that for May 2005, does not attract a proper claim for privilege. The same is true of the entries for 28 October 2005 and 4 November 2005. The recording of the fact of an indemnity and the fact of a complaint does not answer the description of a confidential communication and neither subject matter involves legal advice.
3. The remaining entries, those from 6 October 2005 to 24 October 2005, are properly the subject of a claim for privilege.
4. Document 45 attaches copies of documents 16, 17, and 18. We would make the same rulings in respect of those copies of the documents.

1. Those parts of this document that are subject to a s 42 claim concern the question of conditions upon which indemnity was granted to Mr Young. These matters do not attract a valid claim for privilege and we would not refuse access to these parts on the basis of this claim. Document 52 should be released in full.

1. This document is described by Mr Day in these terms:

"Document 57 is [a] file note created by Mr David O'Brien of Minter Ellison who was engaged by the Tax Office in the Supreme Court proceeding. It records a privileged conversation between Mr O'Brien and Mr Martin Hanson of the Australian Government Solicitor, another law firm engaged by the Tax Office in respect to the Supreme Court proceeding."

The description is accurate and the claim proper. We would uphold it.

1. These documents are described by Mr Day in these terms:

"Document 64 is a file note prepared by Ms Melissa Hinde, a lawyer employed by the Tax Office involved in the conduct of the Supreme Court proceeding. The file note records a meeting on 7 December 2005 attended by Tax Office lawyers Ms Hinde, Mr Sheil, Ms Monagie and myself. The purpose of the meeting was to discuss advice received from Minter Ellison and to provide further instructions to Minter Ellison in respect to the conduct of the Supreme Court proceeding.

Document 65 is a file note prepared by Ms Hinde which summarises the factual instructions received from Tax Office officers, relevant legal authorities applicable to the Supreme Court proceeding. This file note records advice and instructions about further conduct of the Supreme Court proceeding."

The description is accurate and the claim proper. We would uphold it.

1. This document is a briefing note which sets out instructions given to lawyers and the advice received. The claim for exemption is plainly made out and is upheld.

1. This document is a file note of a conference involving counsel and solicitor for the Commonwealth. It is plainly privileged and we uphold the claim.

1. This document summarises the background to the Supreme Court proceedings and summarises the advice of Tax Office lawyers for the purposes of briefing the Commissioner. The claim made for privilege is proper but we think it ought extend to the whole of the first two pages that is, to include all of the email dated 28 November 2005.

1. Mr Day's affidavit describes this document in this way:

"Document 70 is a file note by a Tax Office lawyer recording confidential discussions with the Tax Officer's insurer, Comcover, in respect to the Supreme Court proceedings."

We would uphold the claim for exemption as the document records the content of confidential legal advice.

1. Our conclusions regarding the claims for exemption under s 42 of the FOI Act are that we would:
   • (a) affirm the decisions in relation to documents 9, 15, 16 (in relation only to the passage on the third page of the letter from "In a subsequent meeting ..." to "... his dealing with this matter."), 18 (in relation only to the part on page 3 starting after "... and at their own cost" to the statement commencing "The language used ...". and the part on page 4 commencing with the words "Well I am not saying ..." to and including the words appearing immediately before "I don't think you ..." on page 5), 19, 39, 45 (insofar as it is comprised by the entries from 6 October 2005 to 24 October 2005 and by copies of documents 16 and 18, to the extent set out in relation to those documents), 57, 64, 65, 66, 67, 69 (extending the claim to privilege to the whole of the first two pages), and 70;
   • (b) set aside the decisions in relation to documents 13, 14, 16 (as to the balance), 18 (as to the balance), 45 (as to the balance) and 52.

1. Document 63 is claimed by the Commissioner to be exempt on the basis of s 12 of the FOI Act. That section denies entitlement to access under Part III of the FOI Act to documents, relevantly, that are publicly available. The documents that come within document 63 are described as pleadings and other court documents filed in the Supreme Court proceedings. We would regard such documents as being documents publicly available. They may be accessed by any member of the public upon payment of the prescribed fee.[15] In these circumstances we think the Commissioner's basis for refusing access is made out.

SECTION 22 - DELETION OF EXEMPT OR IRRELEVANT MATERIAL

"22 Deletion of exempt matter or irrelevant material

(i) not to grant a request for access to a document on the ground that it is an exempt document; or

(ii) that to grant a request for access to a document would disclose information that would reasonably be regarded as irrelevant to that request; and

(b) it is possible for the agency or Minister to make a copy of the document with such deletions that the copy:

(c) it is reasonably practicable for the agency or Minister, having regard to the nature and extent of the work involved in deciding on and making those deletions and the resources available for that work, to make such a copy;

the agency or Minister shall, unless it is apparent from the request or as a result of consultation by the agency or Minister with the applicant, that the applicant would not wish to have access to such a copy, make, and grant access to, such a copy.

(2) Where access is granted to a copy of a document in accordance with subsection (1):

(iii) if any matter deleted is exempt matter because of a provision of this Act - that the matter deleted is exempt matter because of that provision; and

(b) section 26 does not apply to the decision that the applicant is not entitled to access to the whole of the document unless the applicant requests the agency or Minister to furnish to him or her a notice in writing in accordance with that section."

1. The documents said by the Commissioner to fall within this category are "certain material contained in" documents 1, 2, 9, 22, 40, 42, 52, 53, 54 and 55. It is not apparent to us which parts of the identified documents are said to be irrelevant or how s 22 would operate in the present circumstances. In any event, having considered the particular documents we are not satisfied that s 22 of the FOI Act has any work to perform.

1. In the result we would:
   1. affirm the decisions in relation to documents 9, 10, 15, 16 (in relation only to the passage on the third page of the letter from "In a subsequent meeting ..." to "... his dealing with this matter."), 18 (in relation only to the part on page 3 starting after "... and at their own cost" to the statement commencing "The language used ...". and the part on page 4 commencing with the words "Well I am not saying ..." to and including the words appearing immediately before "I don't think you ..." on page 5), 19, 39, 40, 42, 45 (insofar as it is comprised by the entries from 6 October 2005 to 24 October 2005 and by copies of documents 16 and 18, to the extent set out in relation to those documents), 57, 59, 60, 61, 62, 63, 64, 65, 66, 67, 69 (extending the claim to privilege to the whole of the first two pages), and 70;
   2. set aside the decisions in relation to the claim for exemption under s 38 of the FOI Act in relation to documents 1, 2, 3, 4, 5, 6, 7, 8, 9, 11, 16, 18, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 43, 45, 46, 47, 48, 50, 51, 53, 54, 55, 56, 58, 68, 69, 71 and 74;
   3. set aside the decision in relation to document 12.
   4. remit to the respondent for reconsideration in accordance with these reasons the decisions in relation to documents 1, 2, 3, 4, 5, 6, 7, 8, 9, 11, 12, 16, 18, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 43, 45, 46, 47, 48, 50, 51, 53, 54, 55, 56, 58, 68, 69, 71 and 74;
   5. set aside the decisions in relation to documents 12 13, 14, 16 (as to the balance), 17, 18 (as to the balance), 41, 44, 45 (as to the balance), 49, 52, 72 and 73, and substitute a decision that the applicant is entitled to access to those documents or parts thereof.
2. We would specify 18 March 2008 as the date on which this decision will come into operation in order to give the Commissioner an opportunity to appeal if he is so advised.

I certify that the 76 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC and Deputy President Dr B H McPherson CBE

Signed: ...................Signed................................................

Dates of Hearing 28 August 2007, 30 and 31 October 2007

Applicant Self-represented, assisted by Mr R Edmunds

[1] [1952] HCA 32; (1952) 86 CLR 1 at 6.

[2] [1986] FCA 443; (1986) 13 FCR 124.

[3] Federal Commissioner of Taxation v Nestle Australia Ltd [1986] FCA 368; (1986) 12 FCR 257 at 261.

[4] [1986] FCA 443; (1986) 13 FCR 124 at 136.

[5] [2000] FCA 1396; (2000) 105 FCR 1 at 7, [11].

[6] See Hogg, P.W. & Monahan, P.J., Liability of the Crown, 3rd ed., Carswell, p. 123; Decock v Alberta (2000) 186 DLR(4th) 265 at 275-285

[7] [1986] FCA 443; (1986) 13 FCR 124 at 136.

[8] [2005] FCA 170; (2005) 143 FCR 461.

[9] Illawarra Retirement Trust v Secretary, Department of Health and Ageing (2005) 143 FCR 431 at 474-5 [56-60]

[10] Mulley v Manifold [1959] HCA 23; (1959) 103 CLR 341 at 345.

[11] [1997] AATA 713; (1997) 45 ALD 556 at 566, [60].

[13] [2007] FCAFC 64; (2007) 159 FCR 1 at 6.

[15] Uniform Civil Procedure Rules (Qld) r 980, 981