110 The structure of s 11A(3) of the FOI Act is that it is for the decision-makers to identify a lawful basis for refusing access to a document referred to in a request that meets the requirements of s 15(2) and to which the FOI Act applies. If there is no document meeting the description of an "official document of the Minister" falling within the request, at the time that the request is received, then that is a lawful response that may be given. Another response may be that the request does not provide adequate information to enable the document to be identified: FOI Act, s 24AA(1)(b). Another response is that the request relates to documents that are "exempt documents" as defined in the FOI Act. That is not an exhaustive list. The point is that no response given by the original decision-maker is conclusive of the issues arising on the request for so long as the requesting party has and exercises rights of review and appeal.
111 I have already accepted Mr Patrick's submission that a request cannot be responded to by a Minister or agency taking the step of wilfully destroying a document, then responding in terms that it is not in his or her actual or constructive possession. As mentioned earlier, the Attorney-General complained that the construction of a statute should not be undertaken by reference to extreme hypothetical factual scenarios. But it is not at all plain that the destruction of documents containing Government information is an extreme factual scenario. Even if it were, it is nonetheless informative to ask how the FOI Act would operate on those facts in accordance with each party's preferred construction. Without the temporal element identified earlier in these reasons, the "extreme" fact of a requested document going through a shredding machine would form a permissible factual basis for refusing access under the FOI Act, not a breach of any duty arising under it. In accordance with the caution in Kline the objects of the FOI Act must be understood as being subject to competing public interest considerations. But there is no obvious public interest consideration favouring the Attorney-General's preferred approach.
112 As discussed below, destruction of a document that is a "Commonwealth record" may in some circumstances constitute a criminal offence under the Archives Act. However, not all documents fall within the definition of a Commonwealth record. In any event, Mr Patrick does not seek to have a person prosecuted for destruction of a document. He seeks access to the Document and he may well have a legal entitlement to that access.
113 The same considerations apply where the request has been the subject of an initial refusal decision founded on any one of the exemptions in the FOI Act that has proceeded to a review
