Case note: Linda Poulton and Department of Climate Change, Energy, the Environment and Water (Freedom of Information)

Case note: Linda Poulton and Department of Climate Change, Energy, the Environment and Water (Freedom of information) [2025] AICmr 47 (11 March 2025)

This decision provides important confirmation of a long accepted principle; if information has previously been subject to public disclosure under another access mechanism (such as a state-based information access legislation, administrative access, a public statement or media release), it is unlikely that the same or similar material will then be appropriate for exemption under the FOI Act. 

This recent decision makes clear that when considering the application of conditional exemption provisions, FOI Officers should pay close attention to whether requested information has already entered the public domain. 

FOI Commissioner Pirani finds that where a portion of the requested material had already entered into the public domain through a disclosure decision under a state information access regime, this material would not meet the threshold for the conditional exemption in s 47B of the FOI Act. This is because an adverse effect upon disclosure could not be established where public disclosure of the same information had already occurred. 

Key takeaways

FOI Officers should have close regard to whether disclosure of the requested information has already occurred under other avenues (e.g. state information access regimes, disclosure logs, administrative release, or media releases).

The application of FOI Act exemption provisions will be affected in circumstances where a State Agency has already released information into the public domain via their own information access regimes. 

In considering whether requested material may attract the conditional exemption under s 47B(a), Commonwealth Agencies can formally consult under s 26A of the FOI Act. As part of this consultation, FOI Officers should enquire as to whether the requested material has previously been subject to release under other information access regimes. 

Alternatively, even if s 47B is not being considered, Commonwealth Agencies can informally consult with relevant State Agencies about the documents or subject matter captured by an FOI request.