scheme appears to have been drafted on the assumption that a document that is in the Minister's possession at the time of the request for access will remain in his or her possession (actual or constructive) at the time of a decision on the request. The possibility that a document might be in the Minister's possession at the time of the request for access but cease to be in the Minister's (actual or constructive) possession at the time of decision should not drive the construction of the provisions, in circumstances where their meaning is reasonably clear. One would expect that, in most cases, the Minister would at least have constructive possession of the document at the time of the decision on the request.
58 To the extent that the Attorney-General relies on other provisions of the FOI Act to support his construction, we do not consider that those provisions help his argument; if anything, they support the construction that we prefer. The Attorney-General relies on sub-sections (4) to (6) of s 11A and submits that these sub-sections recognise that the factual basis on which a decision on access is to be made is capable of changing over time. However, for the reasons set out above, we consider these sub-sections to support the construction we prefer. In summary, when a fact or matter is to be determined at a later point in time (after the request for access), this is made clear; there is no similar treatment in respect of the question whether a document is an "official document of a Minister". The Attorney-General relies on s 24(1) (which provides a basis for refusing access if the work involved would substantially and unreasonably interfere with the performance of the Minister's functions – s 24AA(1)(a)(ii)) and submits that this is determined at the time of the decision, not at the time of the request. This may be accepted, but it does not assist the Attorney-General's argument. The text of s 24(1), which refers to "when dealing with a request for a document", makes clear that it relates to a later point in time; there is no equivalent textual indicator in relation to the question whether a document is an "official document of a Minister".
59 The Attorney-General relies on s 24A(1) (see [22] above), which permits access to be refused if reasonable steps have been taken to find a document, and the Minister is satisfied that the document is in the Minister's possession but cannot be found, or the document does not exist. The Attorney-General submits that these questions are to be determined at the time of decision. That may be accepted. However, again, we do not consider this to support the Attorney-General's construction. It is clear from the text and substance of s 24A(1) that it relates to a later period of time (after the request for access was made) because it contemplates that a search has occurred in response to a request for access. There is no equivalent indication in relation to the question whether a document is an "official document of a Minister".
