and control of the Secretary of the Department of the Prime Minister and Cabinet (PM&C) and are issued to ministers and departments on a need‐to‐know basis. Once a minister or department no longer has any immediate need for them, and, in any event, when the minister vacates office or a change of government occurs, any copies of Cabinet documents must be returned to Cabinet Division or destroyed.
111. The convention is that Cabinet documents are confidential to the Government which created them and not the property of the sponsoring minister or department. Access to them by succeeding governments is not granted without the approval of the current parliamentary leader of the appropriate political party.
(Emphasis added.)
84 In the present case, as noted above, Mr Patrick applied to the Department of Prime Minister and Cabinet for access to the Document; this request was refused on the basis that the Document could not be found or did not exist.
85 The Attorney-General submitted that the Archives Act, GRA38 and the Cabinet Handbook "set out exactly how documents of ministers are to be dealt with when they leave office" and "conventions of responsible government deal particularly with how former cabinet documents are to be dealt with", which was important in the present case because it was asserted by Attorney-General Porter that the Document was a Cabinet document (T14).
86 In oral submissions in response, counsel for Mr Patrick submitted that it is necessary to identify precisely the duty that the primary judge found. Counsel submitted that this appears at [108] and [115] of the Reasons (see [32] above); the process of reasoning started with the right to have a request determined in accordance with the FOI Act; Mr Patrick did not understand this to be controversial; the primary judge then found that there is a correlative duty, described as "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)"; similarly, in [115], the primary judge referred to "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". Counsel submitted that, framed in that relatively narrow way, the duty found by the primary judge is "entirely uncontroversial" (T58).
87 Mr Patrick submits that: the scheme involves lengthy timeframes; a Minister has 30 days to notify a decision, or 60 days if the Minister decides that time should be extended (s 15(5)–(6)); the Information Commissioner can extend time further, both before and after the time for
