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 (including a decision on review). As I have already mentioned, s 24A may also apply in cases where the question of possession cannot be objectively ascertained, but a document is nonetheless believed to be in the possession of the Minister concerned. That is a sensible construction of the FOI Act that accords with its objectives. It remains necessary to identify whether it is the only such construction.

98 The Attorney-General submitted that the FOI Act must be construed in the context of a broader legislative regime concerning the handling, care and access to public documents including the Archives Act which operates both to prohibit the destruction of public records other than in accordance with its terms and require the transfer of certain records to the National Archives where a different public access regime applies. There is no evidence in this case that the Document was transferred by Mr Porter or any other person to the National Archives, nor is there evidence that the Document has been destroyed in accordance with or contrary to the Archives Act or any other law. But it is necessary to consider the provisions of the Archives Act because of submissions concerning its interaction with the regime established under the FOI Act and the nature of the mischief said by Mr Patrick to arise if his submissions are rejected. That will be done in the context of answering the remaining questions of law.

99 Ultimately, I have concluded that the question of whether a document referred to in an FOI request meets the description of an "official document of a Minister" (if it arises in the particular case) is a question that must be resolved by reference to facts and circumstances existing at the time that a request under s 15(2) is received in respect of it. The status of the document under the definition is not to be revisited and revised by reference to changed facts and circumstances following the date that the request is received. However, as I have said, access to a document to which an FOI request relates may nonetheless be refused in the circumstances described in s 24A of the FOI Act, applied by reference to facts and circumstances arising after a request is received. It is in that context that loss or destruction of a document captured by the request falls to be considered. As explained earlier, access to a document that may be captured by a request may also be refused on bases that do not depend on any finding about whether it is so captured, or whether or not it has been lost or destroyed.

100 I am urged by the Attorney-General to avoid that construction because it may create a situation in which Ministers may have legal obligations under s 11A(3) to provide access to Patrick v Attorney-General (Cth) [2024] FCA 268