Commonwealth v Hittich

The Commonwealth appealed against a decision of the Administrative Appeals Tribunal (AAT) that certain documents were not exempt from disclosure under the Freedom of Information Act 1982 (Cth). The AAT had found that documents numbered 228 and 342 were not exempt under section 33(1)(b) of the Act because they had already been released to the public. The Commonwealth argued that the AAT had misapplied the law in making this finding.

The legal issues for the court were whether the "public interest" was a relevant consideration under section 33(1)(a)(iii) of the Act and whether it was relevant to an exemption under section 33(1)(b) that a document had already been released to the public. The court held that the AAT had misapplied the law in finding that the public interest was a relevant consideration under section 33(1)(a)(iii). The court further held that it was relevant to an exemption under section 33(1)(b) that a document had already been released to the public. The court found that the AAT had failed to take into account the fact that the documents had been released to the public in making its decision.

The court allowed the appeal and set aside the decision of the AAT in so far as it referred to documents numbered 228 and 342. The court declared that those documents were exempt from disclosure pursuant to section 33(1)(b) of the Freedom of Information Act 1982. The court made no order as to costs.