on an erroneous construction of the FOI Act: Reasons, [9]. The primary judge set aside the decision of the Information Commissioner and remitted Mr Patrick's application for review to the Information Commissioner for determination according to law.
30 The primary judge considered question of law 1 (set out above) at [60]–[101] of the Reasons. The primary judge's reasoning included:
96 As to temporal considerations, consistent with the reasoning and outcome in Lobo [v Department of Immigration and Citizenship (2010) 116 ALD 639] (which I consider to be correct) the FOI Act would be unworkable if there existed an ongoing obligation to consider the application of its provisions to all documents continually coming into the possession of an agency or Minister for the first time after an FOI request is made. The more sensible construction is that the population of documents falling within the scope of the request is to be determined by reference to facts and circumstances existing at the time that the request is made such that the cohort of documents subject to that assessment is to remain static. To my mind it would be a strange construction if the cohort of documents to be considered against the provisions of the FOI Act could be temporally static in the sense that it could not later expand, but fluid in the sense that it could later shrink. …
(Emphasis added.)
31 The primary judge concluded her reasoning in relation to question 1 in the following passage:
98 The Attorney-General submitted that the FOI Act must be construed in the context of a broader legislative regime concerning the handling, care and access to public documents including the Archives Act which operates both to prohibit the destruction of public records other than in accordance with its terms and require the transfer of certain records to the National Archives where a different public access regime applies. There is no evidence in this case that the Document was transferred by Mr Porter or any other person to the National Archives, nor is there evidence that the Document has been destroyed in accordance with or contrary to the Archives Act or any other law. But it is necessary to consider the provisions of the Archives Act because of submissions concerning its interaction with the regime established under the FOI Act and the nature of the mischief said by Mr Patrick to arise if his submissions are rejected. That will be done in the context of answering the remaining questions of law.
99 Ultimately, I have concluded that the question of whether a document referred to in an FOI request meets the description of an “official document of a Minister” (if it arises in the particular case) is a question that must be resolved by reference to facts and circumstances existing at the time that a request under s 15(2) is received in respect of it. The status of the document under the definition is not to be revisited and revised by reference to changed facts and circumstances following the date that the request is received. However, as I have said, access to a document to which an FOI request relates may nonetheless be refused in the circumstances described in s 24A of the FOI Act, applied by reference to facts and circumstances arising after a request is received. It is in that context that loss or destruction of a document captured by the request falls to be considered. As explained earlier, access to a document that may be captured by a request may also be refused on
