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 122 In my view it can be no answer to the FOI request to say that another person maintains physical custody or control of the document if it is also the case that the person responsible for resolving the request has an entitlement to access it. So much is apparent from the definition of the phrase "official document of a Minister". As discussed earlier in these reasons, it also arises from the meaning of the word "possession" standing alone, as identified by Beaumont J in Beesley. If a change of Minister has occurred before an FOI request is made, and the request relates to a document that is in fact in the physical custody of the former holder of office, then the new incumbent is, at the time of the request, "deemed" to be in possession of it by virtue of that entitlement. The document will be an official document of a Minister at the time of the request and the FOI Act then operates on it in accordance with its terms. The Minister's entitlement to access the document must at least be maintained, if not exercised, to the extent necessary to fulfil the duties I have described.

123 In a case where there is a change in the person holding office of Minister after a request but before the Minister makes an initial decision on the request, the duty to determine the request is one owed by the new occupier of the office. The function of determining the request is to be carried out in the context of the rights and obligations identified above. The new occupant of the office of Minister has the same obligations as the former occupant, and may demand from the former occupant the transfer of the custody of the document to the extent necessary to fulfil those obligations. The machinery of that in the context of Cabinet documents is discussed separately below.

124 Under s 24A of the FOI Act, reasonable steps to find a document must include steps to make enquiries as to its whereabouts directed to the person last known to have it in his or her physical custody or control and against whom there is an entitlement to access it (including a former Minister). Absent such enquiries, the new occupant of the office of Minister cannot reasonably form a view that the document "cannot be found" or "does not exist". Expressed another way, a search cannot be described as reasonable if it is confined to a physical place, when it is known that the document was last in the possession of a person who can reasonably be supposed to have taken it from that place.

125 The construction favoured by the Attorney-General on the temporal question would result in an outcome where, upon a change of Minister, all requests under the FOI Act still pending at that time can lawfully be met with a nil response, notwithstanding that the document was in the possession of the person holding office of Minister at the time that the request was made, Patrick v Attorney-General (Cth) [2024] FCA 268