question raised in [2(c)] "no". There will be cases in which the rights of the requesting party may be sufficiently protected if the document is kept within the Minister or agency's physical control (but not custody), or by the maintenance of an entitlement to access to the document from another (such as a former Minister) with a view to exercising that entitlement for all purposes necessary for the final resolution of the request, should they arise.
117 The duties I have identified may be understood as ordinary incidents of the function of the relevant Minister or agency to perform functions under the FOI Act, including the function under s 55DA to use best endeavours to assist with a Commissioner's review. They arise as a natural and logical consequence of the requesting party's procedural rights to have the request determined.
118 The obligations of "outgoing Ministers" mentioned in the second question of law require further elaboration.
The consequence of a change of Minister
119 Any question about the obligations of a Minster under the FOI Act must be answered in light of s 20 of the Acts Interpretation Act, as well as the express statement in s 3 that information held by the Government is a national resource to be managed for public purposes. A document containing such information and held in an official capacity is not the property of the person who happens to hold the office of Minister, nor of the political party to whom that person happens to belong.
120 It follows that upon a person ceasing to hold the office of Minister, the person has no personal entitlement to maintain possession of a thing previously held in his or her official capacity. Whether or not information contained in a document is subject to obligations of confidentiality as between entities within Government or external to it is a different question (discussed below). But there is nothing in the FOI Act conferring an entitlement on a person who has possession of a thing obtained in his or her official capacity as Minister to maintain possession of the thing after ceasing to occupy the office.
121 In the case of a document for which a request has been made under the FOI Act, the duties of the Minister to deal with the request must be understood as duties that must be discharged by the person holding the office of Minister from time to time. Insofar as the FOI Act confers rights on the Minister, those rights may be exercised by the person holding office from time to time. The right of Mr Dreyfus to participate in the review and this appeal is an example.
