Leichsenring and Secretary, Department of Defence

This matter concerned an appeal by Mr Leichsenring against a decision of the Australian Information Commissioner (the Commissioner) affirming the Department of Defence's refusal to grant access to certain documents under the *Freedom of Information Act 1982* (Cth). The Department had claimed that the documents were exempt from disclosure due to legal professional privilege.

The primary legal issue before the Tribunal was whether the Department had waived legal professional privilege over a document described as the "Request" for legal advice, and potentially over the legal advice itself. Mr Leichsenring contended that the Department's actions and statements, particularly in a determination by the Chief of Defence Force (CDF) and in references to the Request in other determinations, indicated a waiver of privilege. He argued that the Request and the Advice were so interconnected that if the Advice was to be disclosed, the Request must also be disclosed to understand the legal reasoning.

The Tribunal considered the burden of proof rested on Mr Leichsenring to establish waiver. It found that the CDF's determination merely acknowledged that legal opinion had been sought and dealt with an issue of ambiguity, without disclosing the content or conclusions of the advice, and therefore did not waive privilege. Similarly, references to the Request in other determinations were limited to stating that expert legal opinion had been sought. The Tribunal applied the principle that the mere disclosure of the existence of legal advice or a request for advice does not generally amount to a waiver of privilege, distinguishing this from situations where the substance of the advice or reasoning is disclosed. The Tribunal also noted that it was not entitled to consider policy considerations regarding Defence's interest in transparency, as the Department was entitled to rely on the protection of section 42 of the Act.

The Tribunal affirmed the Commissioner's decision, which had refused access to one document in full and another in part, upholding the Department's claim of legal professional privilege.