"official document of the Minister" within the meaning of the FOI Act. I will refer to that as the IC Decision.
7 This is an appeal from the IC Decision.
8 Among other things, Mr Patrick contends that the Commissioner erred by asking herself whether the Document was an official document of a Minister as at the date of the IC Decision, rather than at the Request Date. He contends that his FOI request gave rise to a legal obligation in Mr Porter to preserve and maintain the Document, and a legal entitlement in persons subsequently occupying the office of Attorney-General to demand the production of the Document to them at least for the purpose of discharging obligations under the FOI Act relating to it. He contends that the IC Decision proceeds from a misconstruction of the FOI Act in either or both of those respects. In addition, he contends that the Commissioner's misconstruction of the FOI Act caused her to misconstrue the scope of her discretionary powers to demand the delivery of the Document to her for the purposes of the review.
9 I am satisfied that the Commissioner proceeded on an erroneous construction of the FOI Act and that the IC Decision must accordingly be set aside. The application for review of the Refusal Decision will be remitted to the Commissioner for determination according to law.
10 These reasons consider scenarios in which a person responsible for performing functions or exercising powers under the FOI Act engage in acts such as the wilful destruction of documents subject to a pending request. That has been done solely for the purpose of testing the outcomes on the parties' competing construction of the statute. I emphasise from the outset that there has been no suggestion of any wrongdoing of that or any other kind by persons responsible for dealing with Mr Patrick's request.
THE FOI ACT
11 The express objects of the FOI Act are to give the Australian community access to information held by the Government of the Commonwealth by requiring agencies to publish information and providing a right of access to documents: FOI Act, s 3. Section 3(2) of the FOI Act confirms that the Parliament intends, by those objects, to promote Australia's representative democracy by contributing to (relevantly) the increase of scrutiny, discussion, comment and review of the Government's activities. Parliament also intends, by those objects, to increase recognition that information held by the Government is to be managed "for public purposes", and is a "national resource": FOI Act, s 3(3).
