The proceeding at first instance
23 Pursuant to s 56(1) of the FOI Act, Mr Patrick appealed to the Federal Court of Australia, on a question of law, from the decision of the Information Commissioner made on 28 February 2023.
24 By ground 1(a) of his amended notice of appeal, Mr Patrick contended that the relevant date for determining whether a document is an "official document of the Minister" is the date of the FOI request (or, in the alternative, some other date earlier than the date of the Information Commissioner's decision on the review) and not the date of the Information Commissioner's decision on the review, and that at the relevant time the Document was in the possession of then-Attorney-General Porter. The corresponding question of law set out in the amended notice of appeal was:
1. On the proper construction of the FOI Act, what is the relevant date by reference to which the question of whether a document is "an official document of a Minister" is to be assessed and, in the event of an Information Commissioner review ("IC Review"), is the assessment to be undertaken again by reference to a different date?
25 By ground 1(b) of his amended notice of appeal, Mr Patrick contended (in summary) that, further and in any event, the Document is an "official document of the Minister" on the basis that it was a document that had passed from the custody of the Minister and to which the current Minister is "entitled to access", because:
- (a) the former Minister, Mr Porter, was subject to an implied obligation, arising from the FOI Act, to take such steps as were necessary to retain custody of the Document for the purpose of the Information Commissioner's review and not to deal with the Document in such a way as to frustrate provision of access to the Document; and
- (b) the current Minister, Mr Dreyfus, is entitled to have the Document produced to him by the former Minister, Mr Porter, in accordance with the general law or in any event upon request.
26 Questions of law 2, 5 and 6 in the amended notice of appeal were said to relate to this ground. It is sufficient to set out questions of law 2 and 5:
2. Does the FOI Act impose an implied obligation upon a Minister (including an outgoing Minister) in relation to a document that the Minister has identified as an official document of the Minister:
- a. which falls within the terms of a request made under s 11 of the FOI Act that has not been finally determined; and/or
