document to be kept in the physical custody of the person in every case and so would answer the more specific 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.
33 In the same section of the Reasons, the primary judge also stated:
123 In a case where there is a change in the person holding office of Minister after a request but before the Minister makes an initial decision on the request, the duty to determine the request is one owed by the new occupier of the office. The function of determining the request is to be carried out in the context of the rights and obligations identified above. The new occupant of the office of Minister has the same obligations as the former occupant, and may demand from the former occupant the transfer of the custody of the document to the extent necessary to fulfil those obligations. The machinery of that in the context of Cabinet documents is discussed separately below.
…
128 Question 5 should therefore be answered "yes", although with one qualification. It will not always be the case that a former Minister having an official document in his or her custody will be in breach of a duty arising under the FOI Act. It is enough to observe that the former Minister has an obligation to deliver up the document into the possession of a person entitled to demand it. That includes the new incumbent in the office in connection with a document subject to an unresolved request for access under the FOI Act. If the document contains information that is said to be confidential as against the new holder of the office, then delivery up of the thing containing the information can occur subject to conditions maintaining that confidentiality. Cabinet documents may fall within that description, but in my view documents claimed to be subject to legal professional privilege are less likely to be so. That is because the privilege subsisting in documents held by a person in their official capacity as a Minister of the Commonwealth is not theirs to claim in any personal capacity. Rather, it may be claimed by the person holding the office from time to time.
34 The primary judge considered the Attorney-General's submissions in relation to the Archives Act at [129]–[146] of the Reasons. Those submissions referred to and relied on General Records Authority No. 38 – Ministers of State (GRA38), published by the NAA pursuant to ss 3C and 24(2)(b) of the Archives Act. In summary, the primary judge held that the Attorney-General's submissions about the operation of the Archives Act did not support any different conclusion on the proper construction of the FOI Act: Reasons, [129].
