Shord and Commissioner of Taxation (Freedom of information)

This matter concerned an application by Mr Shord for review of a decision by the Commissioner of Taxation not to release certain documents under the *Freedom of Information Act 1982* (Cth) (FOI Act). The Australian Information Commissioner had previously decided not to review the Commissioner's decision, finding it in the interests of the administration of the FOI Act for the matter to be considered by the Tribunal. The core of the dispute involved 23 documents, primarily email communications, which the Commissioner claimed were exempt from release due to legal professional privilege under s 42 of the FOI Act. Mr Shord sought access to correspondence and email communications concerning prior settled tribunal and court proceedings with the Commissioner.

The primary legal issue before the Tribunal was whether the 23 disputed documents were exempt from disclosure under s 42 of the FOI Act, specifically whether they attracted legal professional privilege. This required the Tribunal to determine if internal communications between Australian Taxation Office (ATO) officers and lawyers, including those involving legal research conducted by a graduate under supervision, were subject to privilege. A further question arose as to whether any such privilege had been waived by the emails being copied to multiple ATO personnel.

The Tribunal applied the common law test for legal professional privilege, as incorporated into the FOI Act, which requires examination of whether there was a professional legal adviser-client relationship, whether the document was created for the dominant purpose of giving or receiving legal advice or for use in actual or anticipated litigation, and whether the advice was independent and confidential. The Tribunal referred to the Guidelines issued under s 93A of the FOI Act, which summarise the policy basis for legal professional privilege as promoting full and frank disclosure between lawyer and client for the benefit of the effective administration of justice. The Tribunal found that the disputed documents were subject to legal professional privilege and were therefore exempt from release.