Patrick v Attorney-General (Cth)

In the case of Patrick v Attorney-General (Cth), the applicant sought access to a document under section 15(2) of the Freedom of Information Act 1982 (Cth). The Attorney-General initially identified one document that met the description of an “official document of a Minister” but refused access on the basis that it was exempt, including because it was a Cabinet document. The applicant applied for review to the Information Commissioner, who varied the original decision, finding that the document was not in the possession of the new incumbent of the office of the Attorney-General at the time of the decision on review. The Commissioner concluded that the document did not meet the description of an “official document of the Minister” within the meaning of the FOI Act at the time of the decision on review. The applicant appealed the Commissioner’s decision.

The legal issues in the case included whether the Commissioner erred in applying the definition of an “official document of a Minister” at the time of the decision on review and whether the Commissioner misconstrued the scope of her discretionary powers to demand the delivery of the Document to her for the purposes of the review. The court also considered the interaction between the FOI Act and the Archives Act 1983 (Cth) and the rights and duties arising under the FOI Act, including a duty of decision-makers not to interfere with the requesting party’s right to have their request for access determined according to law.

The court found that the Commissioner proceeded on an erroneous construction of the FOI Act, misconstruing the scope of her discretionary powers to demand the delivery of the Document for the purposes of the review. The court held that the Commissioner’s misconstruction of the FOI Act caused her to misconstrue the scope of her discretionary powers. The court concluded that the Commissioner’s decision must be set aside, and the application for review of the refusal decision will be remitted to the Commissioner for determination according to law.

The court ordered that the appeal be allowed, the decision of the Information Commissioner be set aside, and the applicant’s application for review of the decision of the Attorney-General be remitted to the Information Commissioner for determination according to law. Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.