51 Ground 1(a) is to the effect that the question of whether a document is an "official document of the Minister" is to be determined on the basis of a factual state of affairs existing at the time that FOI request is made (or alternatively some earlier date preceding the decision on a Commissioner's review), and not on the basis of a state of affairs existing at the time of the decision on review.
52 Mr Patrick's principle contention is that at the time of his FOI request, the Document was in Mr Porter's actual possession and there is no dispute that at that time it met the description of an official document of a Minister. Its status as an official document of a Minister could not be revisited by reference to facts existing at a later time, so it was submitted.
53 Ground 1(a) gives rise to a question of law articulated as follows:
1. On the proper construction of the FOI Act, what is the relevant date by reference to which the question of whether a document is 'an official document of a Minister' is to be assessed and, in the event of an Information Commissioner review ('IC Review'), is the assessment to be undertaken again by reference to a different date?
54 Ground 1(b) is advanced in the alternative. It is to the effect that the Document falls within the definition of an "official document of the Minister" because it had passed from the custody of the Minister and it was a document which the succeeding Minister (Senator Cash and later Senator Gallager and Mr Dreyfus) was "entitled to access" because:
- (1) Mr Porter was under an implied obligation (arising from the FOI Act) to take such steps that were necessary to retain custody of the Document for the purposes of the Commissioner's review and not to deal with the Document in a way that would frustrate provision of access to it; and
- (2) the current Attorney-General, Mr Dreyfus is entitled to have the Document produced to him in accordance with the general law and in any event upon request.
55 Ground 1(b) is said to give rise to three questions of law, articulated as follows:
2. Does the FOI Act impose an implied obligation upon a Minister (including an outgoing Minister) in relation to a document that the Minister has identified as an official document of the Minister:
- a. which falls within the terms of a request made under s 11 of the FOI Act that has not been finally determined; and/or
- b. which is the subject of an IC Review under Part VII of the FOI Act,
- to:
- c. take such steps as are necessary to retain in the custody of the
