Lever and Comcare (Freedom of information)

This matter concerned an application under the *Freedom of Information Act 1982* (Cth) where the applicant sought access to certain documents. The applicant had previously been dismissed from employment with ANSTO and had made a claim for compensation with Comcare, which was ultimately unsuccessful. The applicant alleged fraud and misleading conduct by ANSTO and Comcare in relation to his employment and compensation claim. The Administrative Appeals Tribunal (AAT) was required to determine whether documents sought by the applicant were exempt from disclosure, particularly in relation to claims of legal professional privilege.

The primary legal issues before the Tribunal were whether certain documents were "documents of an agency" for the purposes of the *Freedom of Information Act*, whether Comcare had constructive possession of these documents, and whether legal professional privilege could be claimed over them. The applicant also alleged that any claim of privilege should be set aside due to alleged fraud and misleading conduct by Comcare and its representatives. The Tribunal considered whether the actions of Comcare's decision-maker, Ms Schulz, and the conduct of Mr Pasfield in engaging external assistance, amounted to fraud or illegal conduct that would vitiate the claim of privilege.

The Tribunal found that while the applicant had alleged fraud and misleading conduct, the evidence did not support these allegations. Specifically, the Tribunal determined that the summary provided to a medical assessor did not constitute misleading conduct, nor did the delay in processing the claim or the failure to seek further medical advice amount to fraud or illegal conduct. Consequently, the Tribunal upheld the claim for legal professional privilege over the documents in question. However, the Tribunal also found that certain records held by AGS, which were not produced under a section 71 notice, were held by AGS solely because Comcare was their client. Accordingly, access to these specific records was to be granted to the applicant.