and notwithstanding that it is known to have remained in the custody of that person immediately upon their ceasing to hold office, and not withstanding that the outgoing Minister has no personal entitlement to physical custody and control of it. There could be a refusal notwithstanding that there exists no other basis in the FOI Act for such a decision. There is no obvious textual basis or policy consideration to justify favouring that construction.
126 I accept that there may be very strong political resistance to an outgoing Minister transferring documents forming the subject of a pending FOI request to a new incumbent, particularly on a change of Government. This Court was told that it was common practice for documents not to be transferred. But the FOI Act is not concerned with party-political matters other than to the extent provided for in respect of documents correctly described as falling within certain exemptions. To the contrary, it is a regime devised to enlarge scrutiny of Government activities in accordance with its terms, including in cases where scrutiny is not wanted. If there be a common practice of the kind suggested to this Court in submissions, it is not one that is authorised or contemplated by the FOI Act and it should stop. The balance between maintenance of secrecy and public access is one that is struck by the Parliament. It is legislation, not political or administrative convention, that is determinative of Mr Patrick's rights in the present case.
127 The better construction is one that requires and assumes compliance by outgoing and incoming Ministers with the obligations I have identified, operating together with the temporal element contended for on this appeal. To act otherwise in accordance with those obligations would constitute an interference with the legally enforceable right of the requesting party to have the request determined according to law, interference with review and appeal rights, and interference with the legally enforceable right of access if there be one in accordance with the ordinary operation of the FOI Act. In other words, if a conundrum arises where a Minister does not have actual or deemed possession of a document, that is a matter that can be considered under s 24A of the FOI Act. If s 24A cannot supply the answer then it may be that the conundrum has arisen because of a breach of duty on the part of those responsible for handling the request. The circumstance that a case may arise where access cannot be given because a duty has been breached is not a reason to avoid a construction that imposes the duty.
