relevant ministerial office remaining as the respondent, despite the fact that a different individual holds the office. However, an issue for the continuation of an IC review arises when the new Minister no longer has possession of documents subject to an IC review application (s 4(1) of the FOI Act).
17. This issue was also recently considered by Freedom of Information Commissioner Hardiman in 'ACY' and Attorney-General (Freedom of information) [2023] AICmr 7 (22 February 2023) ('ACY'), which also discusses the impact of ministerial changes on an IC review application following a federal election and a change in government. Commissioner Hardiman was satisfied on the evidence before him that the current Attorney-General does not have possession of the documents at issue and that, for the purposes of the IC review, any relevant document is no longer an 'official document of the Minister' to which the mandatory access rule in s 11A(3) of the FOI Act applies.
Enquiries made to the Department, Attorney-General Cash and NAA
18. As noted above, at paragraph [9] the OAIC made enquiries as to whether the documents were transferred by then Attorney-General Porter to the Department, to then Attorney-General Cash, or to the NAA. These enquiries were made on the basis that a current minister may, in principle, seek access to documents held by the relevant Department or the NAA.
19. Based on the evidence before me, I am satisfied that the document was not received by the Department. I am also satisfied that then Attorney-General Cash did not receive the document at issue following her appointment as Attorney-General and that it was not in her possession.
20. Based on the evidence before me, I am also satisfied that the document was not received by the NAA under National Archives of Australia General Records Authority 38.[1]
Enquiries made to the current Attorney-General
21. As noted above at para [10], following the May 2022 election, the Hon Mark Dreyfus KC was appointed Attorney-General and became the new respondent in this IC review. The OAIC made inquiries with the Attorney-General's Department and the current Attorney-General, as to whether the current Attorney-General was in possession of the document at issue or whether the document was transferred to the Department.
22. The Department did not locate any record of receiving a transfer of documents from the office of former Attorney-General Cash following the May 2022 election, nor any record that documents from the former Attorney-General's office were transferred to the NAA.
23. I am satisfied that staff within the Office of the current Attorney-General were unable to locate the document at issue in this IC review and that staff undertook all reasonable searches to locate any relevant documents within the scope of the FOI request and no relevant documents were identified. I am satisfied that there was no record of the Department having received a transfer of the document from former Attorney-General Cash following the May 2022 change of government and that there was no record that documents from former Attorney-General Cash falling within the scope of the FOI request were transferred to the NAA.
Findings
24. I am satisfied the document is not in possession of the current Attorney-General, nor was it transferred to the Department or the NAA.
- ↑ Retention of records are matters under the Archives Act 1983 and is not an issue that can be considered in an IC review: Josh Taylor and Minister for Foreign Affairs (Freedom of information) [2021] AICmr 33, at [26] and Josh Taylor and Prime Minister of Australia (Freedom of information) [2018] AICmr 42 at [27].
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oaic.gov.au
