Duncan and Secretary, Department of Human Services (Freedom of information) - [2017] AATA 52

Duncan and Secretary, Department of Human Services (Freedom of information) [2017] AATA 52 (20 January 2017)
Division:FREEDOM OF INFORMATION DIVISION
File Number: 2015/5302
Ian Duncan
APPLICANT

AndSecretary, Department of Human Services
RESPONDENT

DECISION
Tribunal:Dr James Popple, Senior Member
Date:20 January 2017
Place:Canberra

The decision under review is affirmed.
..................[sgd]......................................................
James Popple, Senior Member
CATCHWORDS
FREEDOM OF INFORMATION — Access to documents — whether agency’s decision that a practical refusal reason existed was validly made — whether agency impermissibly treated applicant’s separate requests as a single request — whether documents subject to legal professional privilege — decision under review affirmed
LEGISLATION
Acts Interpretation Act 1901, s 23(b)
Administrative Appeals Tribunal Act 1975, ss 26(1)(b), 44(1), 45
Freedom of Information Act 1982, ss 15, 22, 24, 24A, 24AA, 24AB, 31B, 42, 53A, 54G, 54L, 54W(b), 55G, 57A(1)(b), 58(2), 61(1)(b), 64(1A), 93A

CASES
‘AR’ and Australian Federal Police [2013] AICmr 80
Dreyfus and Secretary, Attorney-General’s Department [2015] AATA 962
Duncan and Secretary, Department of Human Services [2016] AATA 152
Francis and Department of Defence (2012) 59 AAR 35
Grant v Downs (1976) 135 CLR 674
Prinn and Department of Defence [2016] AATA 445
Rovere and Secretary, Department of Education and Training [2015] AATA 462
Secretary, Department of Prime Minister and Cabinet and Wood [2015] AATA 945
Smith and Australian Federal Police [2016] AATA 531
Waterford v Commonwealth (1987) 163 CLR 54

SECONDARY MATERIALS
Office of the Australian Information Commissioner, Guidelines issued by the Australian Information Commissioner under s 93A of the Freedom of Information Act 1982 (December 2016)

REASONS FOR DECISION
Dr James Popple, Senior Member
20 January 2017
Summary

The applicant made four separate requests for documents under s 15 of the Freedom of Information Act 1982 (the FOI Act). Centrelink treated his four requests—later, three requests, after the applicant withdrew one—as a single request under s 24(2) of the FOI Act. Centrelink refused access to the documents on the basis that a practical refusal reason existed: the work involved in processing the request would substantially and unreasonably divert the resources of the agency from its other operations.
Centrelink and the Department of Human Services (the Department) made a further five decisions in relation to the applicant’s requests, as a result of which some documents were provided to the applicant. However, the Department identified 46 documents within the scope of the applicant’s request which, it says, contain exempt matter.
I affirm the decision under review. The documents in dispute are exempt under s 42 of the FOI Act (about documents subject to legal professional privilege). The applicant says that the practical refusal decision was not validly made. But it is not necessary for me to decide that question, because the Department no longer claims that a practical refusal reason exists. And nothing about the way that Centrelink and the Department processed the applicant’s requests invalidated decisions they made during that processing.
Background
On 15 March 2016, I made a decision (the interlocutory decision) in this review.[1] I answered the interlocutory question: what is the decision under review in the Tribunal? I did so by considering the application of the FOI Act to Mr Ian Duncan’s various requests for access to documents, and the various decisions (including decisions varying earlier decisions) made in response to his requests.
[1] Duncan and Secretary, Department of Human Services [2016] AATA 152.
In my written reasons for the interlocutory decision, I set out the background to this review in detail.[2] I summarise that background below. In those written reasons, I said that the background to this review is complicated.[3] It has become more complicated since.
[2] [2016] AATA 152 at [2]–[18].
[3] [2016] AATA 152 at [2].
On 14 June 2011, Mr Duncan applied to Centrelink under s 15 of the FOI Act for access to documents relating to his allegations that five people had breached the APS Code of Conduct.[4] He made four separate requests.
[4] The APS Code of Conduct is set out in s 13 of the Public Service Act 1999. The Code imposes obligations on APS employees (people engaged under the Act).
On 11 July 2011, Centrelink wrote to Mr Duncan. Centrelink said that it was satisfied that his requests related to documents, the subject matter of which was substantially the same. Accordingly, Centrelink decided to treat his four requests as a single request under s 24(2) of the FOI Act. Centrelink also told Mr Duncan that it was satisfied that a practical refusal reason existed in relation to his request because the work involved in processing the request would substantially and unreasonably divert the resources of the agency from its other operations (s 24AA(1)(a)(i)). Centrelink told him that it intended to refuse access to the documents he had requested, and commenced a request consultation process (s 24AB).
On 8 August 2011, Mr Duncan revised his request, by withdrawing one of his four requests. On 22 August 2011, Centrelink decided that a practical refusal reason still existed, and refused access to the documents that Mr Duncan had requested. This was the August decision.
On 12 September 2011, Mr Duncan applied to Centrelink under s 15 of the FOI Act for access to documents relating to the August decision. On 11 October 2011, Centrelink refused access to the documents requested, on the basis that those documents were amongst the documents covered by the August decision. This was the October decision.
On 26 October 2011, Mr Duncan applied to the Information Commissioner under s 54L of the FOI Act for IC review of the August decision and the October decision. An IC review is a review of an IC reviewable decision undertaken by the Information Commissioner under Part VII of the FOI Act (s 54G).
On 10 May 2012, the Department made some material available to Mr Duncan. (Centrelink had been integrated into the Department from 1 July 2011.) The Department said that it was varying the October decision under s 55G of the FOI Act. It was actually varying both the August decision and the October decision.[5] This was the first variation decision.
[5] [2016] AATA 152 at [12] and [34].
On 11 July 2012, the Department purported to refuse the remainder of Mr Duncan’s requests, under s 24A of the FOI Act, on the basis that further documents could not be found or did not exist. That decision was of no effect.[6]
[6] That purported access refusal decision did not have the effect of giving access to any document, so it was not a variation of an access refusal decision under s 55G of the FOI Act: see [2016] AATA 152 at [13] and [35].
On 13 August 2012, Mr Duncan withdrew his application for IC review in relation to the October decision.
On 20 December 2012, the Department made some further material available to Mr Duncan. Again, the Department said that it was varying the October decision under s 55G. It was actually varying the August decision.[7] This was the second variation decision.
[7] The Department could not have varied the October decision (as varied) because Mr Duncan had withdrawn his application for IC review in relation to the October decision: see [2016] AATA 152 at [15] and [34].
On 9 August 2013, the Department made some further material available to Mr Duncan. It did so by further varying the August decision under s 55G (though it did not specify which of its previous decisions it was varying). This was the third variation decision.
On 9 September 2015, the Information Commissioner decided, under s 54W(b), not to undertake an IC review on the basis that the interests of the administration of the FOI Act made it desirable that the IC reviewable decision be considered by the Tribunal.
On 7 October 2015, Mr Duncan applied to the Tribunal, under s 57A(1)(b) of the FOI Act, for review of the IC reviewable decision.
On 15 March 2016, I made the interlocutory decision: that the decision under review in the Tribunal was the August decision as varied by the first, second and third variation decisions.
On 13 September 2016, the Department decided that it wished to alter the decision under review so as to make some further material available to Mr Duncan. The parties have called this the September decision. Mr Duncan consented to the Department altering the decision under review in this way. On 10 October 2016, the Tribunal also consented, so (pursuant to s 26(1)(b) of the Administrative Appeals Tribunal Act 1975—the AAT Act) the September decision altered the decision under review.
Decision under review
The decision under review is the IC reviewable decision in relation to which the Information Commissioner decided not to undertake an IC review (that is, the August decision as varied by the first, second and third variation decisions[8]) as varied by the September decision.
[8] [2016] AATA 152 at [36].
Documents in dispute
In these reasons, I will adopt the shorthand of referring to a document that is wholly comprised of exempt matter[9] as wholly exempt; and to a document that contains, but is not wholly comprised of, exempt matter as partly exempt. Strictly speaking, under s 31B of the FOI Act, the whole document is exempt if one of the exemptions in Division 2 of Part IV applies; or if one of the conditional exemptions in Division 3 of Part IV applies and access to the document would, on balance, be contrary to the public interest.[10] However, s 22 provides for an FOI applicant to be given access to an edited copy of a partly exempt document, modified by the deletion of the exempt matter.
[9] Section 4(1) of the FOI Act provides that “exempt matter means matter the inclusion of which in a document causes the document to be an exempt document”.
[10] See also the definitions of “conditionally exempt” and “exempt document” in s 4(1).
The Department has provided a schedule of the 46 documents in dispute (the documents).[11] The reviewable decision is that 31 of the documents are wholly exempt and the remaining 15 are partly exempt.
[11] The documents are grouped in the schedule under four decisions: the three variation decisions and the September decision. Because the documents are numbered within each of these groups, the document numbering is not unique. See notes 22–26 below.
The Department voluntarily produced to the Tribunal an unedited copy of the documents.[12] I have examined them.
[12] See FOI Act, s 64(1A).
Issues
The Department says that all of the documents are exempt—31 of them wholly exempt—because of s 42 of the FOI Act (about documents subject to legal professional privilege). The Department also says that nine of the documents are exempt—three of them wholly exempt—because of s 47C (about deliberative processes).
Mr Duncan says that the August decision (the practical refusal decision) was not validly made under the FOI Act. Mr Duncan also claims that Centrelink and the Department impermissibly treated his separate requests as a single request not just for the purposes of deciding whether a practical refusal reason existed, but in other contexts: for example, in claiming exemptions under ss 42 and 47C.
So, the issues in this review are:
·Was the August decision validly made under the FOI Act?
·Did Centrelink impermissibly treat Mr Duncan’s separate requests as a single request?
·Are some or all of the documents exempt because of the legal professional privilege exemption in s 42?
·Are some of the documents exempt because of the deliberative processes conditional exemption in s 47C? That depends on:
owhether those documents are conditionally exempt under s 47C; and
oif they are conditionally exempt, whether access to those documents would, on balance, be contrary to the public interest (s 11A(5)).
Because of s 61(1)(b) of the FOI Act, the Department has the onus of establishing that the reviewable decision was justified, or that I should give a decision adverse to Mr Duncan.
The parties provided written submissions on these issues, and asked that I make a decision on the papers without a hearing.
Was the August decision validly made?
Mr Duncan says that the August decision (the practical refusal decision) was not validly made under the FOI Act. He argues that this is so for several reasons:
·Centrelink was not entitled to treat his separate requests as a single request for the purposes of deciding that a practical refusal reason existed;
·Centrelink did not take reasonable steps to assist him to revise his requests;
·Centrelink should have given him access to at least the documents it had found in the course of deciding that a practical refusal reason existed; and
·the August decision was plainly wrong because his requests were later processed.
Section 24 of the FOI Act provides:
24 Power to refuse request—diversion of resources etc.
(1)If an agency or Minister is satisfied, when dealing with a request for a document, that a practical refusal reason exists in relation to the request (see section 24AA), the agency or Minister:
(a) must undertake a request consultation process (see section 24AB); and
(b) if, after the request consultation process, the agency or Minister is satisfied that the practical refusal reason still exists—the agency or Minister may refuse to give access to the document in accordance with the request.
(2)For the purposes of this section, the agency or Minister may treat 2 or more requests as a single request if the agency or Minister is satisfied that:
(a) the requests relate to the same document or documents; or
(b) the requests relate to documents, the subject matter of which is substantially the same.
Section 24AA relevantly provides:
24AA When does a practical refusal reason exist?
(1)For the purposes of section 24, a practical refusal reason exists in relation to a request for a document if either (or both) of the following applies:
(a) the work involved in processing the request:
(i)in the case of an agency—would substantially and unreasonably divert the resources of the agency from its other operations; or …
Section 24AB sets out how an agency or minister must conduct a request consultation process.
As noted above,[13] before it made the August decision, Centrelink told Mr Duncan that it was satisfied that a practical refusal reason existed in relation to his requests because the work involved in processing those requests would substantially and unreasonably divert the resources of the agency from its other operations. Centrelink told him that it intended to refuse access to the documents he had requested, and commenced a request consultation process. Having conducted a request consultation process, Centrelink made the August decision: namely, that a practical refusal reason still existed, and that Mr Duncan should be refused access to the documents that he had requested.
[13] See [7] above.
Mr Duncan had made four separate FOI requests. Each was for access to documents relating to investigations conducted following his allegations that five Centrelink employees had breached the APS Code of Conduct. (Three of his requests related to one Centrelink employee each; the fourth related to two other Centrelink employees.)
In deciding that a practical refusal reason existed, Centrelink treated Mr Duncan’s four requests as a single request. Mr Duncan withdrew one of his requests during the request consultation process. In deciding that a practical refusal reason still existed (after the request consultation process) Centrelink treated Mr Duncan’s remaining three requests as a single request. It did so because, it said, his requests related to documents, the subject matter of which is substantially the same (s 24(2)(b)). Mr Duncan says that it was illogical for Centrelink to have treated his separate requests as a single request. He says that they should have been treated as separate requests because they related to different people.
Having examined the documents, it is not clear to me that Mr Duncan’s requests related to documents, the subject matter of which is substantially the same. There is some detail in the documents about the allegations that Mr Duncan made about the people to whom the requests related, and how those allegations were dealt with by Centrelink. But there is not enough detail, in relation to all of those people, for me to be sure that the subject matter of the documents is substantially the same across all of Mr Duncan’s requests.
The onus is on the Department to establish that I should decide this issue adversely to Mr Duncan.[14] But the Department has not provided me with any further information that might assist me in deciding this issue. Instead, the Department says that I have already decided this issue in the interlocutory decision. “By virtue of [the interlocutory] decision”, the Department says, “the validity of the [August] decision, and any steps prior to the making of that decision, including the decision to treat the requests as a single request, are not in question and do not require further determination by the Tribunal”. I agree with the Department that Centrelink’s decision to treat Mr Duncan’s separate requests as a single request is not in question, but not because of the interlocutory decision. The interlocutory decision does not assume the validity of the August decision. Its validity was not—and could not have been—determined by the interlocutory decision because the August decision was not part of the reviewable decision. Even if Centrelink was wrong to treat Mr Duncan’s separate requests as a single request, that would not affect this review, because the Department no longer claims that a practical refusal reason exists.
[14] FOI Act, s 61(1)(b).
The practical refusal decision (the August decision) was varied by the first, second and third variation decisions, then by the September decision. The resulting decision—the decision under review—is no longer a practical refusal decision. The Department no longer claims that the work involved in processing Mr Duncan’s requests would substantially and unreasonably divert the resources of the agency from its other operations. The Department now claims that the documents—that is, the documents that remain in dispute, after it gave Mr Duncan access to all other requested documents—are exempt, because of s 42 and/or s 47C of the FOI Act.[15]
[15] Mr Duncan points to ‘AR’ and Australian Federal Police [2013] AICmr 80, an IC review decision, in which I (as Freedom of Information Commissioner) said that “[t]he FOI Act does not allow an agency to process an FOI request by refusing access to some documents on the basis of practical refusal, then processing the remaining documents” (at [28]). I explained that “[i]t is always open to an agency to release documents to an applicant notwithstanding that access has been refused to those documents on the basis of practical refusal or otherwise” (citing s 3A of the FOI Act), but “any such release is not done under the FOI Act: more precisely, those documents are not released in accordance with an FOI request” (at [29]). This review is different, because the Department varied its practical refusal decision by releasing various documents, and claiming that the remaining documents are exempt. In ‘AR’, the agency did not vary its practical refusal decision.
Mr Duncan says that, if Centrelink was wrong to treat his separate requests as a single request, then the August decision was not properly made under the FOI Act. This means, he says, that the subsequent variations could have no effect. This argument is misconceived. Even if Centrelink was wrong to treat Mr Duncan’s separate requests as a single request, that would not make August decision invalid—it would just make it wrong. The August decision could have been subject to merits review by the Information Commissioner (under Part VII of the FOI Act) and/or by the Tribunal (under Part VIIA). And if the August decision was wrong, the Information Commissioner or the Tribunal would have set it aside and substituted it with a different decision on review. But the August decision is no longer subject to merits review, because it has been varied four times. And no vestige of the August decision survives in the reviewable decision, because the Department no longer claims that a practical refusal reason exists.

Mr Duncan’s other arguments about the validity of the August decision are similarly misconceived:
·Section 24AB(3) of the FOI provides that, if an applicant contacts the agency during the consultation period, the agency “must take reasonable steps to assist the applicant to revise the request so that the practical refusal reason no longer exists”. Section 24AB(4)(b) provides that “reasonable steps” includes “providing the applicant with any information that would assist the applicant to revise the request”. During the consultation period, Mr Duncan asked Centrelink for an index of all documents that it had identified as being relevant to his requests. Centrelink declined to do so, on the basis that collecting and collating that information would, in itself, substantially and unreasonably divert Centrelink’s resources from its other operations. Even if Centrelink was wrong about this, and preparing that information would not have been such a burden on the agency, the validity of the August decision is irrelevant to this review.
·Centrelink did not give Mr Duncan access to any documents when it made the August decision. Mr Duncan maintains that, in the course of making the August decision, Centrelink must have located some documents within the scope of his requests, and that he should have been given access to those documents. Section 24(1)(b) of the FOI Act provides that if, after a request consultation process, an agency is satisfied that a practical refusal reason still exists, the agency may refuse access. So, even if Centrelink had located some documents, it was not obliged to give Mr Duncan access to them when it made the August decision. Even if the validity of the August decision were relevant to this review, Centrelink not having given Mr Duncan any documents when it made the August decision would not have made the August decision invalid.
·Mr Duncan says that the fact that Centrelink and the Department have since processed his requests demonstrates that a practical refusal reason never existed. If the work involved in processing his requests would substantially and unreasonably divert the resources of the agency from its other operations, how were his requests processed? But ss 24 and 24AA of the FOI Act require only that an agency (or a minister) be satisfied that a practical refusal reason exists at the time. A practical refusal decision is not made invalid because an agency changes its mind about the work involved in processing a request. Even if the validity of the August decision were relevant to this review, the subsequent processing of Mr Duncan’s requests did not make the August decision invalid.
The Department no longer claims that a practical refusal reason exists. The correctness of the August decision is not—and cannot be—determined in this decision because the August decision is not part of the reviewable decision. The question whether the August decision was validly made can have no effect on the outcome of this review.
Treating separate requests as a single request
As explained above, Centrelink treated Mr Duncan’s requests as a single request under s 24(2) of the FOI Act for the purposes of deciding that a practical refusal reason existed. Mr Duncan says that, in processing his requests, Centrelink and the Department continued to treat his separate requests as a single request. So, for example, exemptions under ss 42 and 47C were claimed in relation to a single (combined) request, and not in relation to his separate requests.
Mr Duncan says that the various decisions made after the practical refusal decision (the August decision) were invalid because they were not made in relation to any specific FOI request. Mr Duncan points to s 53A of the FOI Act which provides that an access refusal decision is (amongst other things) “a decision refusing to give access to a document in accordance with a request”.
As I pointed out in the interlocutory decision,[16] s 23(b) of the Acts Interpretation Act 1901 provides that, in any Act, “words in the singular number include the plural and words in the plural number include the singular”. An access refusal decision can be a decision refusing to give access to a document (or documents) in accordance with one or more requests. I do not think that s 53A requires an agency to match each document within the scope of one or more requests to a specific request, when refusing access. I think that s 53A specifies the kind of access refusal that amounts to an access refusal decision under the FOI Act: namely, a refusal to give access in accordance with a request, or requests, under the FOI Act, and not (for example) a refusal to give access to a document requested administratively and not under the FOI Act.
[16] [2016] AATA 152 at [31].
Centrelink and the Department may have processed Mr Duncan’s requests as if they were a single request. And they may not have clearly identified the separate request that applied to each document to which access was refused. But that would not invalidate decisions that Centrelink and the Department made when processing Mr Duncan’s requests.
Are the documents exempt under the legal professional privilege exemption (s 42)?
Section 42 of the FOI Act relevantly provides:
42 Documents subject to legal professional privilege
(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.
Legal professional privilege protects confidential communications between a lawyer and a client from compulsory production.
The Australian Information Commissioner has issued guidelines (the FOI Guidelines) under s 93A(1) of the FOI Act. Section 93A(2) provides that “regard must be had” to the FOI Guidelines for the purposes of performing a function, or exercising a power, under the FOI Act. The FOI Guidelines are not binding, but decision makers, including this Tribunal, should apply the FOI Guidelines unless there are cogent reasons to the contrary.[17]
[17] See Dreyfus and Secretary, Attorney-General’s Department [2015] AATA 962 at [33] per Bennett J; Francis and Department of Defence (2012) 59 AAR 35 at 39–40 [18] per Jarvis DP; Rovere and Secretary, Department of Education and Training [2015] AATA 462 at [12]. But see also Secretary, Department of Prime Minister and Cabinet and Wood [2015] AATA 945 at [23]–[27] and Prinn and Department of Defence [2016] AATA 445 at [46]–[57] in which Forgie DP takes a different view. Respectfully, I disagree with her view, for the reasons I gave in Smith and Australian Federal Police [2016] AATA 531 at [25] note 15.
The FOI Guidelines explain that the FOI Act does not define legal professional privilege for the purposes of exemption in s 42. “To determine the application of this exemption,” the FOI Guidelines point out, “the decision maker needs to turn to common law concepts of [legal professional privilege]”.[18] As the FOI Guidelines explain, it is the purpose of the communication that is determinative: “[t]he information in a document is relevant and may assist in determining the purpose of the communication, but the information in itself is not determinative”.[19]
[18] Office of the Australian Information Commissioner, Guidelines issued by the Australian Information Commissioner under s 93A of the Freedom of Information Act 1982 (December 2016) at [5.127].
[19] FOI Guidelines at [5.128].
The FOI Guidelines also explain that, at common law, determining whether a communication is privileged requires a consideration of the following:
·whether there is a legal adviser – client relationship;
·whether the communication was for the dominant purpose of giving or receiving legal advice, or for use in connection with actual or anticipated litigation;
·whether the advice given is independent; and
·whether the advice given is confidential.[20]
In relation to in-house lawyers, the FOI Guidelines explain:
A legal adviser – client relationship can exist but may not be as readily established when advice is received from a lawyer who works within the agency, whether as an ongoing staff member of the agency or as a lawyer contracted to work within the agency to provide advice. Whether a true adviser – client relationship exists will be a question of fact to be determined on the circumstances applying to the particular advice that was given.[21]
[20] FOI Guidelines at [5.129], citing Grant v Downs (1976) 135 CLR 674 and Waterford v Commonwealth (1987) 163 CLR 54. See also FOI Guidelines at [5.136].
[21] FOI Guidelines at [5.131].
The Department describes the documents as follows:
·email correspondence between the Department’s workplace relations team and the Department’s legal services division seeking legal advice, and created for the dominant purpose of providing legal advice;[22]
·email correspondence between legal professional advisers in the Department’s legal services division, attaching draft and final memorandums of legal advice;[23]
·email correspondence between the department’s legal services division and external legal services providers (the Australian Government Solicitor and Sparke Helmore Lawyers) for the dominant purpose of requesting and providing legal advice;[24]
·draft letters containing legal-in-confidence material;[25] and
·file notes and commentary created by legal professional advisers of the department’s legal services division and the Australian Government Solicitor.[26]
I have examined the documents. The Department’s description of the documents is accurate.
[22]    Documents 1, 4, 7, 9–11, 13–20, 22, 23, 25 and 27 of the first variation decision; documents 4, 8 and 9 of the second variation decision; and document 8 of the September decision.
[23]    Documents 3, 5, and 6 of the first variation decision; documents 1, 4–7 and 9 of the second variation decision; documents 3, 5–6 of the third variation decision; and document 2 and 7 of the September decision.
[24]    Documents 21 and 24 of the first variation decision; and documents 2 and 8 of the second variation decision.
[25]    Document 25 of the second variation decision; and document 1 of the September decision.
[26]    Documents 3, 10 and 11 of the second variation decision; and documents 1, 2 and 10 of the third variation decision.
I am satisfied that the documents evidence a legal adviser – client relationship between the Department’s legal services division and other areas of the Department. It is clear from the documents that the legal services division was acting in a capacity as a professional legal adviser, giving independent advice.
I agree with the Department that the material that it says is exempt “was created or recorded for the dominant purpose of giving or receiving legal advice in respect of [Mr Duncan’s] requested APS Code of Conduct investigations”. The documents “contain legal advice and correspondence associated with the provision of legal advice (for instance, requests for legal advice and instructions sought and received from clients in respect of legal advice)”.
I am satisfied that the documents would be privileged from production in legal proceedings on the ground of legal professional privilege. I have reached this conclusion on the basis that:
·there was a legal adviser – client relationship between the Department and its legal services division, the Australian Government Solicitor and Sparke Helmore Lawyers;
·the communications were for the dominant purpose of giving or receiving legal advice, or for use in connection with actual or anticipated litigation (Mr Duncan had previously initiated proceedings against Centrelink, about related issues, in this Tribunal, the Federal Magistrates Court and the Federal Court);
·the advice given was independent; and
·the advice given was confidential.
It follows that the documents are exempt under s 42 of the FOI Act.
The Department says that “real harm would result from the disclosure of the material in the documents subject to [legal professional privilege] as it would compromise the ability for the [Department’s] management of APS Code of Conduct investigations which are sensitive in nature”. This is a reference to what the FOI Guidelines call the “real harm” test:
Agencies are advised not to claim exemption for a document under s 42 unless it is considered that “real harm” would result from releasing the document. A “real harm” criterion is not an element of the common law doctrine of [legal professional privilege], but has been acknowledged within government as a relevant discretionary test to apply in FOI administration. The phrase “real harm” distinguishes between substantial prejudice to the agency’s affairs and mere irritation, embarrassment or inconvenience to the agency.[27]
[27] FOI Guidelines at [5.150], footnote omitted.
I am not convinced that real harm would result from the disclosure of every one of the documents. I am not convinced that the Department is correct when it says (about all of the documents) that disclosure would have an adverse impact on its “ability to give, and receive, candid and confidential legal advice, for APS Code of Conduct matters”, or on its “ability to make informed decisions, with a sound legal basis, which achieve the best outcome, for APS Code of Conduct matters”.
The “real harm” test is good policy in FOI administration. But it is not part of the test for deciding whether a document is exempt under s 42—it is for agencies to apply in deciding whether an exempt document should be disclosed. The Tribunal does not have the discretion to decide to disclose an exempt document. Section 58(2) of the FOI Act provides:
(2)Where, in proceedings under this Act, it is established that a document is an exempt document, the Tribunal does not have power to decide that access to the document, so far as it contains exempt matter, is to be granted.
So, even if I were of the view that no harm would come from the disclosure of any or all the documents, I cannot decide to disclose them.[28]
[28] The same restriction applies to the Information Commissioner on IC review, because of s 55L(2): see FOI Guidelines at [5.151].
Are some of the documents exempt because of the deliberative processes exemption (47C)?
Because of my conclusion that all of the documents are exempt under s 42, I do not need to consider whether some of them are also exempt because of s 47C.
Referral of a question of law
In his submissions, Mr Duncan requested that the Tribunal refer two questions of law to the Federal Court: whether the August decision was validly made; and whether Centrelink and the Department impermissibly treated his separate requests as a single request, not just for the purposes of deciding whether a practical refusal reason existed. Mr Duncan says that it follows, from the answers that he advances to those questions, that the Tribunal has no jurisdiction because there is no validly made decision to review. I disagree, and I have dealt with each of these issues above.[29]
[29] See [29]–[39] and [40]–[43] above.
Under s 45 of the AAT Act, I may, with the agreement of the President of the Tribunal, refer a question of law arising in a proceeding before the Tribunal to the Federal Court for decision. I do not think any questions of law arise in this review that are appropriate to refer to the Federal Court. I note that, under s 44(1), either party to this review may appeal to the Federal Court, on a question of law, from this decision.
Conclusion
It is not necessary for me to decide whether the August decision was validly made, because the Department no longer claims that a practical refusal reason exists. Nothing about the way that Centrelink and the Department processed Mr Duncan’s requests (including treating his several requests as if they were a single request) invalidated decisions that Centrelink and the Department made.
All of the documents in dispute are exempt (31 of them wholly exempt; 15 partly exempt) because of the legal professional privilege exemption in s 42 of the FOI Act.

I certify that the preceding 59 (fifty-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member Popple

...............[sgd].........................................................
Associate
Dated: 20 January 2017

Date final submissions received: 1 December 2016

Applicant: In person

Solicitors for the Respondent: Legal Services Division,
Department of Human Services

Date final submissions received:	1 December 2016
Applicant:	In person
Solicitors for the Respondent:	Legal Services Division, Department of Human Services