Document in such a way as to frustrate provision of access to the Document or to frustrate Mr Patrick's rights of review and appeal. I also accept that successive Attorneys-General were entitled to insist upon compliance with that obligation and rectification upon non-compliance with it. The reasons for that should be apparent from the answers given to questions of law 1 and 2.
171 The argument in Ground 1(b)(ii) does not arise on the facts because there is no evidence that Mr Porter in fact transferred the Document to the National Archives. An abstract answer to it is subsumed in what I have said about Ground 1(b)(i) in any event. To the extent that these reasons have considered the application of the Archives Act they have done so in order to explain the law as it relates to the relevant grounds and to consider the Attorney-General's submission that there exists a single coherent regime under which the implied duties asserted by Mr Patrick do not arise.
172 The argument in Ground 1(b)(iii) is that Mr Dreyfus is entitled to have the Document produced to him by Mr Porter in accordance with the general law or in any event on request. I accept that argument to the extent that it refers to the Document as a thing, as opposed to the information contained in the document in which confidentiality may still be maintained vis a vis Mr Porter and Mr Dreyfus. Entitlement to access the information may not be determined until the Cabinet document exemption under the FOI Act is resolved. The review may nonetheless be conducted without Mr Dreyfus accessing the information contained in the Document. If the exemptions are not established then I have no difficulty concluding that Mr Dreyfus would have an immediate entitlement to access both the Document and the information contained in it, including for the purposes of discharging any obligation arising under s 11A(3) of the FOI Act. In that respect, even if the Commissioner was entitled to apply the test for whether there existed an "official document of a Minister" falling within the request at the time of her own decision, whether the Document met that description may well have depended upon the characterisation of the Document against the claimed exemptions.
173 Ground 2 alleges that the Commissioner erred in the exercise of her discretionary powers under s 55R as conditioned by s 55U of the FOI Act. That ground is upheld. The effect of the Commissioner's reasons was that the power to require production of the Document or the provision of information about it was precluded because of the erroneous view she had formed that it was not an "official document of a Minister".
