otherwise that the document is an exempt document under s 34, the Commissioner may require the document to be produced for inspection. The power under s 55U may be exercised against persons who are not parties to the review. Moreover, the affidavit evidence upon which a party to the review may rely need not be the evidence of a review party, but may be the evidence of a person who is able to inform the Commissioner of any one of the factual matters upon which the operation of s 34 of the FOI Act turns.
152 Section 55U(4) provides that if the Commissioner is satisfied that the document is exempt (specifically that it is a Cabinet document), the Commissioner must return the document to "the person by whom it was produced" without disclosing its contents other than to a limited number of persons prescribed in that subsection.
153 These provisions envisage that there will be persons who may be required to produce the document subject to the claimed exemption to the Commissioner for the purpose of the Commissioner determining whether the exemption applies. Irrespective of the Commissioner's conclusion, whether the Document is properly characterised as a Cabinet document may yet remain uncertain pending the exercise of any appeal rights.
154 Considering those provisions together, it can be seen that an assertion by an original decision maker that a document is a "Cabinet document" does not definitively make it so. Accordingly, the question of whether the administrative conventions and arrangements (such as those recorded in the Cabinet Handbook) apply to the document subject to the claim may itself be the subject of dispute. The most that can be said is that whilst there exists a pending access request in which the claimed exemption is disputed, the applicability of the conventions and arrangements affecting Cabinet documents is uncertain. The FOI Act should not be construed in a way that would permit a member of an Executive to treat that question as if decided in accordance with his or her own view of the matter. The better construction of the FOI Act is that the Executive not treat the Document in any way that would interfere with the right of the requesting party to have the question determined in accordance with the review and appeal procedures established by the FOI Act itself. Those procedures include the power of the Commissioner to require the production of the document (including from a former Minister or Cabinet Division) and to inspect it. If that be done, the Document may also come before this Court on any appeal commenced by the requesting party or any other party. To put or to purport to put the document out of the reach of the Commissioner or the Court (by purporting to apply the Cabinet Handbook to it) is to interfere with the rights of the
