document was not in possession of the current Attorney-General, nor transferred by the former Attorney-General Cash to the Department or the NAA.
11. Further details of the nature and outcome of the enquiries made during the IC review process are discussed further below at [18].
Issue for consideration
12. The issue for consideration is whether the document at issue remains an 'official document of a Minister' to which access can be provided. Section 4(1) defines an 'official document of a Minister' to mean 'a document that is in the possession of a Minister … in his or her capacity as a Minister, being a document that relates to the affairs of an agency or of a Department of State'. Section 4(1) also provides that, 'for the purposes of this definition, a Minister shall be deemed to be in possession of a document that has passed from his or her possession if he or she is entitled to access to the document and the document is not a document of an agency'.
13. Whether the document at issue is in the possession of the current Attorney-General and is therefore an 'official document of a Minister' is determinative of the application of the mandatory access rule, as set out in s 11A(3) of the FOI Act, which is to give access to the document, in accordance with the Act.
Whether the document is in the possession of the current Attorney-General
Previous IC review decisions on the issue of an 'official document of a minister' following a change in government
14. I have considered previous IC review decisions which have discussed the impact of ministerial changes on an IC review application following a federal election and a change in government. In Philip Morris Ltd and Treasurer [2013] AICmr 88, former Freedom of Information Commissioner Popple found that the documents at issue were no longer 'official documents of a Minister' as the minister at the time of the IC review decision being made, was not in possession of the documents within the scope of the FOI request. This decision was made in the context of ministerial changes following a federal election and a change of government in 2013. Similarly, in Thomas and Prime Minister [2014] AICmr 18, during the course of the IC review, the Prime Minister changed as a result of a federal election.[1] The incoming Prime Minister advised that they were not in possession of documents within the scope of the FOI request. In that case, Commissioner Popple found that the documents requested were not official documents of a Minister because they were not in the possession of the new Prime Minister.[2]
15. I have considered the applicant's submissions which provide alternative interpretations to these IC review decisions. The applicant essentially proposes that:
… the powers (and jurisdictions conferred) under the FOI Act are invoked by way of an application made out in accordance with s11A of the Act. The powers and jurisdiction remain enlivened until such time as an applicant withdraws his or her request, or finality is reached in relation to a decision (original or otherwise) – i.e. a decision is accepted by both parties or review/appeal rights or [sic] either party are exhausted.
16. As noted in Philip Morris, the IC review application does not automatically cease when the individual who holds a ministerial office changes. The matter continues, with the
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