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 claim that a document is exempt, for example, may longer be sustainable when the decision is reviewed because of changing events. A document thought to have been mislaid might have been found. An announcement might have been made and deferment of access under s 21 might no longer be justifiable.

95 The reasoning in Lobo highlights an obvious aspect of the regime established under the FOI Act: much of the law establishing exemptions and exceptions pre-supposes the existence of one or more documents to which that law can (indeed must) be meaningfully applied. The regime operates in a practical reality in which there must first be an assessment as to whether there is a document falling within the scope of the request that is in the possession (actual or deemed) of the person responsible for either granting access to it or for identifying and asserting any lawful basis for refusing access to it. In the case of a request that does not adequately describe documents, access may be refused under s 24 and the process may end there. But in the case of a person holding the office of a Minister, that assessment otherwise involves not only the fact of possession (or facts giving rise to deemed possession) but also whether the document is possessed in his or her official capacity. It is only after that assessment has been made that the provisions creating exceptions and exemptions to the general right of access under s 11A(3) can be considered.

96 As to temporal considerations, consistent with the reasoning and outcome in Lobo (which I consider to be correct) the FOI Act would be unworkable if there existed an ongoing obligation to consider the application of its provisions to all documents continually coming into the possession of an agency or Minister for the first time after an FOI request is made. The more sensible construction is that the population of documents falling within the scope of the request is to be determined by reference to facts and circumstances existing at the time that the request is made such that the cohort of documents subject to that assessment is to remain static. To my mind it would be a strange construction if the cohort of documents to be considered against the provisions of the FOI Act could be temporally static in the sense that it could not later expand, but fluid in the sense that it could later shrink. Whilst Lobo is not directly on point, and whilst it is not concerned with precisely the same temporal question, the reasoning is sound and I would adopt the same approach as a step in resolving the present question of law.

97 Section 24A may nonetheless operate so as to permit a Minister or agency to refuse to grant access to a document within that cohort, provided that the preconditions for the exercise of that power are met. The existence of those pre-conditions may be assessed by reference to facts and circumstances existing at the time that a decision to refuse access is made Patrick v Attorney-General (Cth) [2024] FCA 268