bases that do not depend on any finding about whether it is so captured, or whether or not it has been lost or destroyed.
100 I am urged by the Attorney-General to avoid that construction because it may create a situation in which Ministers may have legal obligations under s 11A(3) to provide access to documents that are no longer in their physical control or possession at the time of their own decisions or decisions on external review. In other words, it may result in there being an obligation that cannot be fulfilled for reasons that are not the fault of the Minister concerned. That argument can be rejected for reasons given in the course of answering the remaining questions of law. In short, there may be an answer in s 24A of the FOI Act to the conundrum in the case of accidental loss or destruction of a document falling within a request, depending on the facts. The asserted conundrum does not otherwise tell against the imposition of the duties referred to below. Rather, compliance with those duties will avoid the conundrum arising at all. Deliberate non-compliance may constitute a refusal to comply with a legal obligation or an interference with the rights of the requesting party. That is not a "conundrum" in a constructional sense. Rather, it is a factual conundrum arising because of a breach of duties owed under the statute, properly construed.
(Emphasis added.)
32 The primary judge considered questions of law 2 and 5 in the next section of the Reasons, at [102]–[128]. In the course of her reasoning on these questions, the primary judge stated:
108 The right to have a request determined in accordance with the FOI Act gives rise to concomitant obligations on the receiving agency and Minister by necessary intendment. At the very least, there is an obligation not to do any act that would interfere with the right to have the request determined according to law, including any act that would frustrate the exercise of a right of review or appeal by rendering its exercise ultimately futile (even if successful).
…
115 In a case where there is no change in the person holding the office of Minister, I conclude that on the proper construction of the FOI Act there is an obligation owed by the recipient of a request not to deal with a document described in the request in such a way as to frustrate the right of the requesting party to have the request finally determined including on review or appeal. That includes an obligation not to deal with the document in way that would make it impossible to grant access to the document in accordance with the FOI Act should it ultimately be found that the obligation under s 11A(3) exists. It follows that there exists an obligation not to deal with the document in a way that would render the exercise of review or appeal rights inutile. In my view, it must also follow that the Minister or agency responsible for dealing with the request and in whose possession (including deemed or constructive possession) it is in at the time of the request, must maintain that possession until the request is finally determined upon the exercise of review and appeal rights or the expiration of time limits relating to them. For those reasons, I would answer the question in [2(d)] "yes". In the case of a Minister the relevant person is the person holding the office of Minister from time to time.
116 The practical content of that duty must depend on the facts and circumstances of the particular case. To be clear, I do not accept that it is necessary for the
