- (a) Exemptions are determined by reference to the circumstances at the time of decision (including a decision on merits review): each of s 11A(4)–(6) provides that access is not required to be given if the document is exempt or conditionally exempt "at that time". This recognises that the factual basis for several exemptions is capable of changing over time.
- (b) Section 24(1) provides a basis for refusing access if the work involved would substantially and unreasonably interfere with the performance of the Minister's functions (s 24AA(1)(a)(ii)). That is determined at the time of the decision, not the time of request.
- (c) Section 24A(1) permits access to be refused if reasonable steps have been taken to find a document, and the agency or Minister is satisfied that the document is in the agency's or Minister's possession but cannot be found, or the document does not exist. These questions are determined at the time of the decision. It would be absurd if a document otherwise coming within the scope of a request was only found after an initial decision to refuse access but before a decision on review, yet access had to be refused.
- (d) Section 24A(2) deals with refusing access where an agency has not received documents under contractual measures, despite taking all reasonable steps. This also would be determined at the time of decision. If a document was received after an initial refusal decision but before a decision on merits review, it would be absurd to deny access because the document had not been received under the circumstances existing at the time of request.
48 In our view, the correct construction of the relevant provisions is that the time for assessing whether a document is an "official document of a Minister" is the time the request for access is made (and only that time). We consider that construction to be supported by the text of the relevant provisions, considered in the context of the Act as a whole, and its purpose.
49 Section 11 of the FOI Act (see [20] above) deals with the right of access to documents. Section 11(1) provides that, subject to the Act, every person has a legally enforceable right to obtain access in accordance with the Act to (relevantly) an official document of a Minister, other than an exempt document.
50 Section 11A of the FOI Act (see [20] above) is significant for present purposes. The section is headed "Access to documents on request". Section 11A(1) relevantly provides that the section applies if a request is made in accordance with s 15(2) to a Minister for access to an "official
