Quinn and Australian Tax Office (Freedom of information)

This matter concerned an application for freedom of information by Quinn against the Australian Tax Office (ATO). The dispute centred on the ATO's refusal to release certain documents, which it claimed were exempt from disclosure under provisions relating to legal professional privilege and deliberative processes. The Deputy President, F D O’Loughlin QC, was required to determine whether these claims of exemption were valid.

The legal issues before the court were whether specific documents were protected by legal professional privilege, and whether certain other documents, falling within the scope of deliberative processes, were exempt from disclosure. The court also had to consider whether, in relation to conditionally exempt documents, the public interest favoured their release or non-release. The ATO argued that documents prepared for the dominant purpose of obtaining legal advice from the Office of Parliamentary Counsel (OPC) were covered by legal professional privilege, citing the *Betfair* decision which equated dealings with the OPC in legislative drafting to those with lawyers. The ATO also contended that disclosure of documents relating to the costing of draft legislation and advice to the Minister would reveal matters protected by the deliberative process exemption.

The Deputy President reasoned that the relationship between government agencies and the OPC in the production of draft legislation attracts legal professional privilege, as established in *Betfair*. Consequently, all documents other than documents 29 and 35 were found to fall within the scope of this privilege and were therefore exempt under section 40 of the *Freedom of Information Act*. Regarding documents 29 and 35, which the ATO claimed were conditionally exempt under section 47C due to their involvement in deliberative processes, the Deputy President found that while they were conditionally exempt, the public interest did not favour their non-release. The Deputy President noted that document 35 was a simple description of a dividend washing transaction and did not contain sensitive advice.

Ultimately, the Deputy President affirmed the ATO's claims for exemption under section 42 for all documents except 29 and 35, and also affirmed the section 47C claims for those documents. However, the section 47C claims for documents 29 and 35 were not sustained. The decision under review in relation to these specific documents was set aside, and in lieu thereof, it was decided that these documents, while conditionally exempt, were not of a nature that warranted denial of release in the public interest and were therefore to be released.