REASONS FOR JUDGMENT
THE COURT:
Introduction
1 The principal issue raised by this appeal may be stated as follows: where a person requests access to an official document of a Minister under the Freedom of Information Act 1982 (Cth) (the FOI Act), at what point (or points) in time is it to be determined whether the document is an "official document of a Minister"? The primary judge concluded that the answer is: at the time that the request for access is made (and only at that time): Patrick v Attorney-General (Cth) [2024] FCA 268 (the Reasons). The appellant, the Attorney-General of the Commonwealth of Australia (the Attorney-General), contends that the primary judge erred, and that the answer is: both at the time the request for access is made and at the time that a decision is made whether to grant access to the document. The consequence of the answer given by the Attorney-General would be that, if a document was an "official document of a Minister" at the time the request was made, but ceased to be so when the request was decided, there would be no entitlement to access the document under the FOI Act. For the reasons that follow, we consider that the primary judge was correct to conclude that the answer is at the time the request for access is made (and only at that time). It follows that the appeal is to be dismissed.
Background facts
2 The following statement of the background facts is based on the Reasons and the chronologies prepared by the parties (and the documents referred to in the chronologies).
3 The respondent, Mr Rex Patrick, is a former Senator. On 3 February 2020, Mr Patrick made a freedom of information (FOI) request to the Attorney-General's Department (AGD) for access to a document under the FOI Act. A revised request was lodged by Mr Patrick on 11 March 2020.
4 On 3 April 2020, AGD transferred part of Mr Patrick's request to the Attorney-General's Office (AGO) for processing. At this time, the Attorney-General of the Commonwealth was the Hon Christian Porter MP.
