49.
of the document[1]. Where, however, a person exercises control merely as agent, the fact and right of control which comprise lawful possession are attributed to the principal, and the agent enjoys only bare "custody"[2].
135 Accordingly, the fact that a document is dealt with by a person in his or her capacity as part of a Commonwealth institution will support an inference that the document is in the lawful possession of the Commonwealth institution, and so is a Commonwealth record. By contrast, the fact that a document is dealt with by, or as agent for, a person other than the Commonwealth or a Commonwealth institution will support an inference that the document was not in the lawful possession of the Commonwealth or a Commonwealth institution, and thus not a Commonwealth record.
136 Ordinarily, the determination of the capacity in which a person exercises control over a document depends on the objectively discerned intentions of the persons directing and engaged in its production, sending, receipt and storage. And such intentions may often be inferred from the character of the document itself. Other things being equal, a document communicating personal information on a confidential basis is more likely to have been produced, sent, received and stored in a personal capacity or as agent for the confider or confidant. By contrast, a document communicating official information for the purposes of the Commonwealth institution is more likely to have been produced, sent, received and stored in an official capacity as part of the Commonwealth institution.
137 So, for example, if one Senator or Member of the House of Representatives sends a note conveying personal opinions on proposed legislation to another Senator or Member of the House of Representatives expressly on the basis that those opinions should be and remain confidential, the note will ordinarily be a personal communication between the Senators or the Members, notwithstanding that the opinion concerns the business of the Senate or the House. By contrast, if one Senator or Member of the House of Representatives sends a report of the public proceedings of a committee to another Senator or Member of the House of Representatives for the latter to table it, the report will ordinarily be an official record of the Senate or the House.
138 Likewise, if a Judge of a federal court sends a personal note to the Chief Justice or Chief Judge of the court conveying personal opinions about a matter before the court with the evident intention that the opinions be and remain
- ↑ See Pollock and Wright, An Essay on Possession in the Common Law (1888) at 37.
- ↑ Ancona v Rogers (1876) 1 Ex D 285 at 291 per Mellish LJ for the Court; Lord Advocate v Lord Blantyre (1879) 4 App Cas 770 at 791 per Lord Blackburn. See also Pollock and Wright, An Essay on Possession in the Common Law (1888) at 17–18.
