59 I consider question 6 to be subsumed in those questions and otherwise unnecessary to answer. The matters that were necessary to take into account in the present case will be discussed in resolving the second ground of appeal.
Question of law 1
60 The FOI Act contains no express text prescribing the time at which the question of the status of a document as an "official document of the Minister" is to be determined. Nor do the parties' submissions on the question involve a dispute about the meaning of specific words or phrases contained in the text of the FOI Act. Rather, Mr Patrick invites the Court to consider the combined scope and operation of ss 11, 11A and 15 where the phrase "official document of a Minister" appears, and to identify the nature and scope of the factual enquiry to be made by the Commissioner in applying those provisions in the performance of its powers of review.
61 Although not expressly stated, the effect of each party's submission is to invite the Court to read into the definition of an "official document of a Minister" additional words reflecting their competing positions on the temporal issue. Mr Patrick contends that the issue to be determined is whether a document is in the possession of a Minister (etc) "at the time of the request". On that construction, a document will or will not have the status of an "official document of a Minister" according to an assessment of the facts existing at the time that the FOI request was received, and that status cannot be revisited and revised as factual circumstances change. For the Attorney-General it was submitted that the definition requires a factual enquiry to be made from time to time in the administration of the FOI Act, and so may yield different answers as factual circumstances change. The Attorney-General submitted that a document indisputably having the status of an official document of a Minister at the time of an FOI request or original decision to refuse to grant access may lose that status if (for example) a person ceases to hold the office of Minister and successive holders of the office do not have actual possession of the document. The Attorney-General submitted that the Commissioner was correct to conduct the enquiry into the status of the Document against the definition, and to do so by reference to facts as they existed at the time of her decision on review.
62 In the present case, the statute is silent on a topic of some importance to its practical day to day operation. It is not a question turning on the intended meaning of a word or phrase, but rather on the implications that can and cannot be drawn from the rights and obligations of
