Recent Cases: Commonwealth
PricewaterhouseCoopers and Australian Taxation Office (Freedom of information) [2026] AICmr 72 (21 August 2026)
Facts
PricewaterhouseCoopers (“applicant”) applied to the Australian Taxation Office (“ATO”) for access to documents related to taxation law. The ATO identified 324 relevant documents and decided to refuse access in full under s 38 on the basis that the documents contained information prohibited from disclosure under the Tax Administration Act 1953 (Vic) (“TA Act”) per Schedule 3 of the FOI Act. It affirmed this decision in internal review.
The applicant applied to the Office of the Australian Information Commissioner (“Commissioner”) for review. During the review, the applicant limited the scope of documents sought, meaning the disputed documents was limited to 20.
Held
The Commissioner affirmed the ATO’s decision. The information was exempt under s 38.
Reasoning
Secrecy provisions – s 38
Is disclosure of the material prohibited?
The Commissioner was satisfied that the material was disclosed or obtained for the purposes of taxation law, the material related to the taxation affairs of entities other than the applicant and third parties were reasonably identifiable from the information. Therefore, the documents contained protected information within the meaning of the TA Act and was therefore exempt under s 38 unless an exception applied.
Does an exception to s 38 apply?
Focusing on the fact she had seen the documents, the Commissioner did not accept the applicant’s submission that general legal reasoning could be separated from third-party taxation affairs in the documents and instead highlighted that the legal reasoning in the documents was particular to and engage with specific circumstances of third parties and their involvement with the ATO.
The Commissioner did not find that an exception to s 38 applied in these circumstances. Additionally, she agreed that it would not be possible to have produced an edited copy of the documents under s 22 of the FOI Act.
Therefore, the Commissioner was satisfied that the information that the ATO found to be exempt under s 38 was captured by the prohibition in s 355-25 of the TA Act and was exempt under s 38 of the FOI Act.
'BBQ' and Department of Health, Disability and Ageing (Freedom of information) [2026] AICmr 75 (26 August 2026)
Facts
‘BBQ’ (“applicant”) applied to the Food Standards Australia New Zealand (“FSANZ”) for access to documents related to a certain health product. The request was then transferred to the Department of Health, Disability and Ageing (“Department”).
The Therapeutic Goods Authority (“TGA”), a division of the Department, released several documents to the applicant, but held that 10 documents were exempt in full and in part under s 42 of the FOI Act. The Department also excluded information as irrelevant under s 22(1) of the FOI Act, finding it to be outside the scope of the request.
The applicant sought an internal review, in which the Department affirmed its initial decision. The applicant applied to the Office of the Australian Information Commissioner (“Commissioner”) for review.
Held
The Commissioner affirmed the internal review of the Department. The documents attracted legal professional privilege and were exempt under s 42.
Reasoning
Legal professional privilege - s 42
The Commissioner identified 3 categories of information within the disputed documents: Briefs and legal advice from external counsel to the TGA (“Category 1”), emails between Department representatives and the FSANZ (“Category 2”), and internal FSANZ communications and documents (“Category 3”).
Given that the lawyer in Category 1 documents was an external counsel engaged for the purpose of providing legal advice, the Commissioner was satisfied that a sufficiently independent legal adviser-client relationship existed. On their face, the Commissioner was satisfied that the Category 1 documents were confidential documents prepared for the dominant purpose of the TGA obtaining independent and professional legal advice from external counsel. The Commissioner clarified that legal professional privilege extends to copies of non-privileged documents where the dominant purpose for bringing the copies into existence was to obtain legal advice. Therefore, the Category 1 documents were privileged.
Similarly, the Commissioner held that the emails of Category 2 attracted legal professional privilege under s 42. The emails comprised proposed legal questions to counsel, explained the legal advice that the TGA proposed to seek, and invited FSANZ to provide comments before the request was sent. The Commissioner accepted that the Category 2 documents were prepared by the TGA’s in-house legal in relation to the legal advice sought from external counsel.
Finally, the Commissioner held that the documents captured within Category 3 attracted legal professional privilege as they comprised communications provided to or by FSANZ’s in-house lawyers for the dominant purpose of obtaining or providing legal advice.
Waiver of the privilege
The Commissioner held that the Department/TGA’s limited sharing of the legal advice with FSANZ was not waiver of the privilege, as FSANZ had a mutual interest in the advice. The Commissioner noted that FSANZ was actively considering the advice and its implications, rather than being merely a passive recipient. Therefore, the limited sharing of advice was still consistent with maintaining privilege.
Additionally, the Commissioner did not accept that the former Minister for Health’s reference to the existence of legal advice in correspondence waived privilege because the Minister did not disclose the substance or conclusions of that advice. Overall, the Commissioner concluded that there was no evidence of any disclosure or distribution that was inconsistent with confidentiality, and therefore privilege over the documents had not been waived. The documents were exempt under s 42.