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 before the Commissioner. In such a case, wilful destruction of the subject document would constitute an interference with the right of the requesting party to have the request determined afresh, on merits review, in accordance with the law. I accept Mr Patrick's submission that destruction of a document in those circumstances would be anathema to the express objects of the FOI Act. That is not because the express objectives in s 3 of the FOI Act are a direct source of rights and obligations. Rather, it is because the whole of the regime could be rendered useless in advancing those objectives if an agency or Minister could determine for his or herself that a request could be refused because the document has been destroyed following receipt of a request for access to it.

114 I emphasise again that there no evidence in the present case that the Document forming the subject of Mr Patrick's request has been wilfully destroyed. The point is that the construction of the FOI Act favoured by the Attorney-General is one that would permit such destruction to occur as a lawful response to a request under the FOI Act, whether or not destruction of the document constitutes a breach of some other law.

115 In a case where there is no change in the person holding the office of Minister, I conclude that on the proper construction of the FOI Act there is an obligation owed by the recipient of a request not to deal with a document described in the request in such a way as to frustrate the right of the requesting party to have the request finally determined including on review or appeal. That includes an obligation not to deal with the document in way that would make it impossible to grant access to the document in accordance with the FOI Act should it ultimately be found that the obligation under s 11A(3) exists. It follows that there exists an obligation not to deal with the document in a way that would render the exercise of review or appeal rights inutile. In my view, it must also follow that the Minister or agency responsible for dealing with the request and in whose possession (including deemed or constructive possession) it is in at the time of the request, must maintain that possession until the request is finally determined upon the exercise of review and appeal rights or the expiration of time limits relating to them. For those reasons, I would answer the question in [2(d)] "yes". In the case of a Minister the relevant person is the person holding the office of Minister from time to time.

116 The practical content of that duty must depend on the facts and circumstances of the particular case. To be clear, I do not accept that it is necessary for the document to be kept in the physical custody of the person in every case and so would answer the more specific Patrick v Attorney-General (Cth) [2024] FCA 268