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 30 In cases where there has been an initial refusal to grant access to a document under s 24A, the Commissioner on review may require the agency or Minister concerned to conduct further searches for the document: FOI Act, s 55V.

31 After undertaking a review, the Commissioner must make a decision in writing affirming or varying the reviewable decision, or setting aside the reviewable decision and making a decision in substitution for it: FOI Act, s 55K. The Commissioner's decision has the same effect as a decision of the Minister who made the decision under review: FOI Act, s 55K(3).

THE REFUSAL DECISION

32 Mr Patrick's request was initially directed to the Department. The Department advised Mr Patrick that it did not hold the document and so refused access under s 24A of the FOI Act. Mr Patrick's request was later revised to make it clear that it was directed in part to the Attorney-General's Office (AGO). That part of the revised request was then transferred to the AGO under s 16(1) of the FOI Act. In these reasons the AGO is to be understood as the office that communicated with Mr Patrick and the Commissioner in relation to the request on behalf of persons who held the office of Attorney-General from time to time.

33 On 14 April 2020 Mr Patrick received notification of the Refusal Decision from the AGO. The reasons for the Refusal Decision stated that the Document had been identified as falling within the request, but it would be withheld from release because it fell within the exemptions in s 34 and s 42 of the FOI Act. At that time, there was no suggestion that the Document was not an "official document of a Minister", and it may reasonably be inferred that the decision was based on the content of information contained in the Document and the reason for it first coming into existence. No other basis for refusal was put forward.

THE COMMISSIONER'S REVIEW

34 Mr Patrick lodged his application for review of the Refusal Decision with the Commissioner on 4 June 2020. The AGO (on behalf of Mr Porter) provided submissions to the Commissioner in relation to the claimed exemptions. By letter dated 23 December 2020, the Commissioner advised the review parties that it would consider whether to issue a notice under s 55U of the FOI Act requiring the Document to be produced before proceeding to a decision.

35 The application for review remained unresolved for more than two years. As identified earlier, the person holding the office of the Attorney-General changed three times over that Patrick v Attorney-General (Cth) [2024] FCA 268