12 Section 15(1) of the FOI Act relevantly provides:
Persons may request access
(1) Subject to section 15A, a person who wishes to obtain access to a document of an agency or an official document of a Minister may request access to the document.
13 The word "agency" means (relevantly) a Department, and so includes the Attorney-General's Department.
14 The requirements for a request are prescribed in s 15(2). They include a requirement that the request provide such information concerning the document as is reasonably necessary to enable a responsible officer of the agency, or Minister, to identify it: FOI Act, s 15(2)(b).
15 Section 11 is entitled "Right of access". It provides:
(1) Subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to:
- (a) a document of an agency, other than an exempt document; or
- (b) an official document of a Minister, other than an exempt document.
(2) Subject to this Act, a person's right of access is not affected by:
- (a) any reasons the person gives for seeking access; or
- (b) the agency's or Minister's belief as to what are his or her reasons for seeking access.
16 A document is a "document of an agency" if it is in the possession of the agency, whether created in the agency or received in the agency: FOI Act, s 4.
17 The phrase "official document of a Minister" assumes importance on this appeal. It is defined in s 4 to mean:
… a document that is in the possession of a Minister, or that is in the possession of the Minister concerned, as the case requires, in his or her capacity as a Minister, being a document that relates to the affairs of an agency or of a Department of State and, for the purposes of this definition, a Minister shall be deemed to be in possession of a document that has passed from his or her possession if he or she is entitled to access to the document and the document is not a document of an agency.
18 As can be seen, the phrases "document of an agency" and "official document of a Minister" are mutually exclusive: a document may fall within one of the definitions, but not both. Where a request is made to an agency it may be transferred in whole or in part to a Minister in circumstances prescribed in s 16 of the FOI Act.
