25 The obligation to grant access to a document is also subject to s 24A. It provides:
24A Requests may be refused if documents cannot be found, do not exist or have not been received
Document lost or non-existent
(1) An agency or Minister may refuse a request for access to a document if:
- (a) all reasonable steps have been taken to find the document; and
- (b) the agency or Minister is satisfied that the document:
- (i) is in the agency's or Minister's possession but cannot be found; or
- (ii) does not exist.
- …
26 It is common ground that s 24A is to be applied by reference to facts and circumstances existing at the time that a decision on the request is made. Its purpose and operation will be discussed in due course.
27 Part VII of the FOI Act sets up a system for review of "IC reviewable decisions" by the Commissioner. An application for review of such a decision may be made under s 54N. On a review, the Commissioner may obtain any information from any person and make any inquiries that he or she considers appropriate: FOI Act, s 55(2)(d).
28 Section 55A of the FOI Act provides that the parties to the review are (relevantly) the review applicant and "the Minister to whom the request was made". Section 55DA provides that the Minister who made the reviewable decision must use his or her best endeavours to assist the Commissioner to make a decision in relation to the review.
29 Division 8 of Pt VII confers information gathering powers on the Commissioner. Subject to some exceptions, it applies if the Commissioner has reason to believe that a person has information or a document relevant to a review. Under s 55R(3), the Commissioner may, by written notice, require a person to produce to her a document specified in the notice. It is a criminal offence to fail to comply with a requirement specified in the notice: FOI Act, s 55R(5). Section 55U imposes conditions on the Commissioner's power to require production of a document that is claimed to be exempt under (relevantly) s 34 of the FOI Act (Cabinet documents).
