25. As the current Attorney-General does not have possession of the document at issue and cannot give access to the requested documents under s 11A(3) of the FOI Act, the document for the purposes of this IC review is no longer an official document of a Minister.
26. Section 55K of the FOI Act provides that in making a decision on an IC review, I 'may perform the functions, and exercise the powers, of the person who made the IC reviewable decision' and my decision 'has the same effect as a decision of the agency or Minister who made the IC reviewable decision'. Analogous to Phillip Morris and ACY, I can only make a decision on this IC review that can be made by the current Attorney-General. Put simply, I cannot make a decision to release a document that is not in the possession of the current Attorney-General. This issue is also relevant to the applicant's request that the document at issue be compelled to be provided by certain individuals who could be in possession, which for completeness I have discussed further below.
The applicant's request to issue notices under s 55R of the FOI Act to certain individuals who 'could be in possession of' the document at issue in this IC review
27. During the IC review process in their submissions of 15 March 2022, the applicant requested that notices should be issued under s 55R of the FOI Act to certain individuals who 'could be in possession of' the document at issue in this IC review,[1] including the Secretary of the Attorney-General's Department, the Secretary of Prime Minister and Cabinet (PMC), former Attorney-General Porter and former Prime Minister Morrison and for the Attorney-General to seek access as they may be entitled. No notice was issued during the IC review process.
28. There would be no utility in seeking production of the document as that does not overcome the requirement that the document be an official document of a Minister to which the access provision in s11A applies. The FOI Act does not make provision for or contemplate, the transfer by the OAIC of possession of a document at issue to the current Attorney-General.[2]
Conclusion
29. Following changes to the person occupying the role of 'Attorney-General' I am satisfied that the current Attorney-General does not have possession of the document at issue. This means that, for the purposes of this Information Commissioner (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.
Angelene Falk
Australian Information Commissioner
28 February 2023
5
oaic.gov.au
