On 25 September 2024, the Full Federal Court (Rangiah, Moshinsky and Abraham JJ) judgment in Attorney-General v Patrick [2024] FCAFC 126 answered the question: where a person requests access to 'an official document of a Minister' under the Freedom of Information Act 1982 (Cth) (FOI Act), at what point in time is it to be determined whether a document is 'an official document of a Minister'? The Full Federal Court held that the answer is: at the time that the request for access is made (and only at that time).

This case concerned a freedom of information (FOI) request made by Mr Rex Patrick, a former Senator. At the time of the FOI request, there was one document that fell within the scope of the request (Document), which was in the possession of the Attorney-General, Mr Christian Porter. The Attorney-General refused access to the Document on the ground that it was exempt under the FOI Act.

Mr Patrick applied to the Australian Information Commissioner for review of the Attorney-General's decision. During the time that the review was on foot, the person occupying the office of the Attorney-General changed three times, and a federal election took place, resulting in a change of government. By the time of the Information Commissioner's decision, the Hon Mark Dreyfus KC MP was the Attorney-General, and he was not in possession of the Document. The Information Commissioner held that, as the current Attorney-General was not in possession of the Document, the Document was no longer an 'official document of a Minister' (and therefore, there was no entitlement to access the Document under the FOI Act).

On appeal, the Federal Court set aside the decision of the Information Commissioner. The primary judge (Charlesworth J) held that the question of whether a document is an 'official document of a Minister' is to be determined at the time that an FOI request is made (and only at that time). The primary judge also held that there were implied duties on agencies and Ministers under the FOI Act, including an implied duty not to frustrate the right of an FOI applicant to have their FOI request determined.

The Attorney-General appealed from the primary judge's decision. These are the key takeaways from the Full Federal Court's decision.

Whether a document is an 'official document of a Minister' is to be determined at the time that an FOI request is made (and only at that time)

Before the Full Federal Court, the Attorney-General contended that the question of whether a document is an 'official document of a Minister' should be determined both at the time that an FOI request is made and at the time that a decision is made whether to grant access to the document. The consequence of the Attorney-General's construction would be that, if a document was an 'official document of a Minister' at the time that an FOI request was made, but ceased to be so when the request was decided, there would be no entitlement to access the document under the FOI Act.

The Full Federal Court rejected the Attorney-General's contention, having regard to the text, context and purpose of the FOI Act. Notably, the Full Federal Court observed:

• Subsection 11(3) of the FOI Act is the source of the requirement to grant access to a document following a request for access. The requirement under subsection 11(3) of the FOI Act is 'enlivened' when the conditions under subsection 11(1) are satisfied – that is, a request has been made for access to 'an official document of the Minister' (in accordance with subsection 15(2) of the FOI Act) and any applicable charge has been paid. This indicated that the question of whether a document was an 'official document of the Minister' was to be determined at the point in time when the request was made.
• This construction was supported by the definition of 'official document of the Minister' – relevantly defined as a document that is 'in the possession of the Minister concerned'.
• This construction was also supported by other provisions of the FOI Act, which made it clear when a fact or matter was to be determined at a later point in time. In contrast, there was no indication that the question of whether a document was an 'official document of a Minister' was to be revisited at a later point in time (that is, after the date of the FOI request).
• One of the difficulties posed by the Attorney-General's construction was that the character of a document (as an 'official document of a Minister') could contract, but not expand. The Full Federal Court held that this would be a strange result.

Whether a document is a 'document of an agency' is to be determined at the time that an FOI request is made (and only at that time)

Although the issue before the Full Federal Court was whether the Document was an 'official document of a Minister', the Court's reasoning is equally apt to be applied in determining whether a document is a 'document of an agency'.

As for an 'official document of a Minister', the following can be said of a 'document of an agency':

• Subsection 11(3) of the FOI Act is the source of the requirement to grant access to a 'document of an agency'. This requirement is enlivened when a request has been made for access to 'a document of an agency' (in accordance with subsection 15(2) of the FOI Act) and any applicable charge has been paid.
• A 'document of an agency' is relevantly defined as a document that is 'in the possession of the agency'.
• The statutory requirement to grant access to a 'document of an agency' can be distinguished from other provisions of the FOI Act, which make it clear that certain facts or matters are to be determined at a later point in time (that is, after the date of the FOI request).

There is an implied duty not to frustrate the right of an FOI applicant to have their FOI request determined, including on review or appeal

The Full Federal Court also held that there is an implied duty not to frustrate the right of an FOI applicant to have their FOI request determined, including on review or appeal. The Full Federal Court held that this implication was necessary for the provisions of the FOI Act to be workable and to achieve the objects in section 3 of the FOI Act.

In the first instance decision, the primary judge had held that there were other implied duties, including a Minister's duty to maintain possession of relevant documents until an FOI request was finally determined, and (where there was a change of Minister) a former Minister's duty to deliver up documents into the possession of the new Minister, in connection with FOI requests that had not been finally determined. However, the Full Federal Court held that these were 'too prescriptive' and went beyond what was necessary for the provisions of the FOI Act to operate, noting that there could be other ways of ensuring that an applicant's rights under the FOI Act were preserved.

This Full Federal Court judgment provides some useful and practical guidance to Commonwealth Government agencies in managing their FOI caseload. The MinterEllison Public Law team is available to discuss your questions about managing and processing requests for access under the FOI Act and to provide expert legal assistance when required.