Alpert and Secretary, Department of Defence (Freedom of information)

The Administrative Appeals Tribunal (AAT) considered an application by Mr Stewart Alpert for review of a decision by the Department of Defence to refuse access to a document under the *Freedom of Information Act 1982* (Cth). The Department claimed the document was subject to legal professional privilege. After the Office of the Australian Information Commissioner declined to review the matter, deeming the issue of implied waiver of privilege complex, Mr Alpert sought review directly from the AAT.

The primary legal issues before the Tribunal were whether the document in question was protected by legal professional privilege and, if so, whether that privilege had been waived by the Department. The Tribunal was required to determine the scope of the privilege and assess the actions of the Department in relation to the document to ascertain if any waiver had occurred.

The Tribunal found that the document was indeed subject to legal professional privilege, as it concerned a request for and advice from a legal officer within the Department. Crucially, the Tribunal determined that this privilege had not been waived. Consequently, the Tribunal made orders restricting the disclosure of the document, limiting access to specific parties including the Department, its legal representatives, and Tribunal members and staff. As a result of these orders, Mr Alpert was relieved of the obligation to be provided with a copy of the document.