Case note: Geoffrey Shafran and Minister for Veterans' Affairs and Defence Personnel (Freedom of Information)

Geoffrey Shafran and Minister for Veterans' Affairs and Defence Personnel (Freedom of information) [2025] AICmr 46 (4 March 2025) (Shafran v Minister for Veterans' Affairs)

This recent decision has implications for agencies and Ministers where there has been a change of Minister following a change in Government, and provides guidance in managing requests to current Ministers who do not hold documents of the former Minister, but where the agency does. 

The decision under review was a decision to refuse access on the basis that the request sought access to documents of a former Minister, which were not held by the current Minister at the time of the FOI request being made. 

As articulated by the Minister’s Office in their submissions, there is a long-standing convention that Ministers will not have, or be able to access documents of previous Ministers unless those documents have been made public or transferred. It was submitted that in this matter, the requested documents were not transferred to the incoming Minister but were instead returned to the originating Department in accordance with National Archives General Records Authority 38 (GRA 38).

In her consideration of the issue of ‘possession’, Commissioner Pirani discusses ss 4 and 11 of the FOI Act, and the recent Federal Court decision of Patrick v Attorney-General (Cth) [2024] FCA 268, which states the following: '…the correct construction of the relevant provisions is that the time for assessing whether a document is an “official document of a Minister” is the time the request for access is made (and only that time).'

Commissioner Pirani ultimately finds that at the time of the FOI request, the relevant documents were “documents of an agency” and therefore fell outside of the definition of “official document of a Minister”.

This decision provides important guidance from the FOI Commissioner on issues around requests for documents of Minister’s Offices. In addition to this decision, FOI Officers should also take time to read the recent decisions in Patrick v Attorney-General (Cth) [2024] FCA 268 and subsequently in Attorney-General (Cth) v Patrick [2024] FCAFC 126. 

Watch this space - FOI Guidelines Updates

On 1 April 2025, updates to Part 2 of the FOI Guidelines were announced by the OAIC to reflect the recent findings in AG v Patrick.  We encourage all FOI officers to take a look, as these updates provide a helpful summary of responsibilities for incoming and outgoing ministers.

The Guideline updates also articulate the differences between a 'Document of an Agency' and a 'Document of a Minister', as was discussed in Shafran v Minister for Veterans' Affairs.

Key takeaways

• When a Minister receives an access application for documents, consideration must be had to the status of the documents at the time the request was made. 
• If it appears that the requested documents are not in the possession of the Minister, consideration should be had as to whether the matter can be transferred to the relevant Department under s 16 of the FOI Act, if the request can be withdrawn by agreement with the applicant, or if the request will otherwise need to be refused in accordance with s 24A of the FOI Act (subject to all reasonable searches being conducted).
• If transfer of the request is not possible, then the agency or Minister’s Office should assist the access applicant to make a request to the appropriate agency, in line with their obligations under s 15(4) of the FOI Act. 
• If the request is not transferred, or the Applicant does not agree to withdraw the request, then the obligation to process the decision under the FOI Act remains.  All reasonable searches will need to be conducted and an access decision will need to be made.
• If processing a similar request, don't forget to check the recent updates to Part 2 of the FOI Guidelines and be sure to refer to relevant Guideline material in your decision statement.