- b. which is the subject of an IC Review under Part VII of the FOI Act,
- to:
- c. take such steps as are necessary to retain in the custody of the Minister (from time to time) for the purpose of the IC Review; and/or
- d. not deal with the document in such a way as to frustrate provision of access to the document in accordance with the FOI Act or to frustrate the appeal?
…
5. Is the current Minister "entitled to access to" a document that has been transferred out of the custody of the Commonwealth by a former Minister in breach of any of the duties or obligations described in questions 2, 3 and 4 above?
27 Ground 2 in the amended notice of appeal was, in summary, that the Information Commissioner failed to exercise the powers under s 55R (and/or s 55U) of the FOI Act on the basis of a misunderstanding of the relevant law. This ground referred back to grounds 1(a) and (b). It also contained an additional aspect, but it is not necessary to refer to this for present purposes.
28 In the course of the proceeding at first instance, an affidavit of Justin Hyland, a lawyer employed by the Australian Government Solicitor (AGS), dated 19 May 2023, was filed. The affidavit stated that a copy of the Document was held by AGS and explained the circumstances in which AGS came to hold a copy of the Document. It seems that this fact was not appreciated by the parties at the time of the Information Commissioner's decision and was not appreciated by the Information Commissioner at the time of her decision. Because the Information Commissioner was not informed that a copy of the Document was held by AGS, the Information Commissioner did not consider whether the current Attorney-General has possession (actual or deemed) of the Document by virtue of AGS holding a copy of the Document. Further, this was not raised as an issue by Mr Patrick in the proceeding before the primary judge.
The reasons of the primary judge
29 On 21 March 2024, the primary judge published the Reasons. The primary judge held, in summary, that on the true construction of the FOI Act, the time at which one determines whether a document is an "official document of a Minister" is the time of the request for access (and only that time): Reasons, [96], [99], [168]. There could be no question that the Document met the description of an "official document of a Minister" at that time: Reasons, [168]. Accordingly, the primary judge concluded that the Information Commissioner had proceeded
