The 2025 decision in MVX v Ambulance Victoria [2025] VCAT 402:
Key Takeaways
- Reinforces that documents prepared by lawyers for the purpose of giving legal advice remain privileged even when they concern serious or sensitive matters involving public agencies.
- Highlights that the “public interest override” provision in the Victorian FOI Act applies only in exceptional circumstances.
- Demonstrates the ongoing tension between confidentiality in legal advice and the public’s expectation of transparency in government agencies like Ambulance Victoria that deliver essential public services.
Overview
This case involved a Freedom of Information (“FOI”) dispute between a former Ambulance Victoria (“AV”) employee, referred to as MVX, and AV. The matter arose after AV refused to release a confidential investigation report prepared by its external lawyers. The Victorian Civil and Administrative Tribunal (“VCAT”) was asked to decide whether the report was protected by legal professional privilege and, if so, whether the public interest nevertheless required its release.
Background
MVX began working for AV as a Graduate Ambulance Paramedic in 2013. In April 2020, he was informed that his graduate program would be discontinued. Distressed by this decision, MVX sent an emotional email to AV’s Chief Executive Officer expressing despair and shortly afterwards attempted suicide outside AV’s headquarters. He survived and later sought information and closure about how AV had handled his situation and the events leading up to the attempt.
Following the incident, AV engaged external lawyers to conduct an internal review. The purpose of this review, according to AV, was to provide legal advice about the issues raised by MVX and whether any further steps should be taken. The law firm prepared a 38-page confidential report which was provided only to a few senior executives within AV.
Freedom of Information Request
In late 2021, MVX made an FOI request to access documents relating to the investigation into his case. AV identified 47 documents, granting access to 37 in full, two in part, and refusing access to eight others, including the law firm’s report. AV claimed that the report was subject to legal professional privilege under s 32(1) of the FOI Act and was exempt from disclosure.
MVX sought a review by the Office of the Victorian Information Commissioner (“OVIC”), but due to delays, he applied directly to VCAT to have the deemed decision of OVIC reviewed.
The only document in dispute before VCAT was the confidential law firm report.
The Evidence
AV gave evidence that the law firm investigation had been commissioned to obtain legal advice on the concerns raised by MVX. It said the report was confidential, created for the dominant purpose of advising AV’s leadership, and had not been shared with anyone outside the organisation. It explained that AV deliberately chose to use external lawyers to ensure that the process and advice would be covered by privilege.
MVX argued that the investigation was not independent or transparent. He said he was never interviewed as part of the process and that the report should be disclosed in the public interest to expose systemic issues in AV’s culture and complaint handling. He referred to various public reports and inquiries, including the 2016 Victorian Auditor-General’s report on workplace bullying and the 2021 Equal Opportunity Commission’s review of AV’s culture. MVX believed disclosure would help restore public confidence and accountability.
The Legal Issues
Two key issues were before the Tribunal. The first was whether the law firm report was protected by legal professional privilege. The second was whether, even if it was privileged, VCAT should order its release on public interest grounds under s 50(4) of the FOI Act.
VCAT’s Findings on Privilege
VCAT found that the law firm report was indeed covered by legal professional privilege. Although the investigation had a dual purpose—reviewing how AV handled MVX’s case and advising on future actions—the Tribunal held that the dominant purpose was to provide legal advice. Evidence supporting this included references in the law firm engagement letter and cost estimate to providing legal advice, the confidential handling of the report, and its limited distribution within AV. The Tribunal accepted AV’s evidence that the report had always been treated as a privileged legal document and that privilege had never been waived.
As a result, the report was exempt from release under section 32(1) of the FOI Act.
Public Interest Consideration
The Tribunal then considered whether the public interest justified releasing the report despite the privilege. It accepted that the case involved genuine matters of public concern, particularly in light of the well-documented cultural and wellbeing issues within AV. The Tribunal also noted that transparency can serve the public interest by promoting accountability in public institutions.
However, VCAT emphasised that overriding legal professional privilege requires exceptional circumstances. Privilege exists to protect the ability of organisations, including public bodies, to obtain confidential legal advice. The Tribunal decided that, although the case raised significant issues, the public interest in transparency did not outweigh the strong public interest in maintaining privilege. It also rejected AV’s argument that releasing the report would discourage similar investigations in future, stating that public bodies should remain accountable regardless.
Decision
VCAT concluded that the law firm report was created for the dominant purpose of providing legal advice and therefore attracted legal professional privilege. Because the privilege had not been waived, the report was exempt from release. The Tribunal further held that the public interest did not justify overriding that privilege; it did not require disclosure. Consequently, the decision to withhold the report was affirmed.