Decisions of the Information Commissioner
Vexatious applicant declarations
In this guideline:
1.0 Overview
2.0 What the legislation says
2.1 Rationale for the provisions
2.2 Relevant principles
2.3 Meaning of vexatious
2.4 Relevant common law principles
3.0 Requirements
3.1 Has the person repeatedly engaged in
access actions?
3.2 Does the repeated engagement in access
actions or the particular access action
involve an abuse of process?
3.3 Is the access action manifestly
unreasonable?
4.0 Applying to the Information Commissioner
4.1 Initial considerations
4.2 How to make an application
4.3 What to include in an application
4.4 Processing an application
4.5 The decision
4.6 Right of review
4.7 Varying or revoking a declaration
5.0 Further guidance
5.1 Case summaries
5.2 Other decisions
6.0 Summary
1.0 Overview
Under the Right to Information Act 2009 (Qld) (RTI Act) and Information
Privacy Act 2009 (Qld) (IP Act) the Information Commissioner may declare a
person is a vexatious applicant.1
1
Section 114(1) of the RTI Act and section 127(1) of the IP Act.
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This guideline is intended to assist agencies in deciding whether to apply to
the Information Commissioner for a declaration that a person is a vexatious
applicant.
This guideline may also help people who are the subject of an application for a
vexatious applicant declaration to understand the application processes and
requirements and the relevant case law.
2.0 What the legislation says
The terms of section 114 and 115 of the RTI Act2 are set out below:
114 Vexatious applicants
(1) The information commissioner may, on the commissioner’s own
initiative or on the application of 1 or more agencies, declare in writing
that a person is a vexatious applicant.
(2) The commissioner may make the declaration in relation to a person
only if the commissioner is satisfied that—
(a) the person has repeatedly engaged in access actions; and
(b) 1 of the following applies—
(i) the repeated engagement involves an abuse of process for an
access action;
(ii) a particular access action in which the person engages
involves, or would involve, an abuse of process for that
access action;
(iii) a particular access action in which the person engages would
be manifestly unreasonable.
(3) The information commission3 must not make the declaration in relation
to a person without giving the person an opportunity to make written or
oral submissions.
(4) A declaration has effect subject to the terms and conditions, if any,
stated in the declaration.
(5) Without limiting the conditions that may be stated, a declaration may
include a condition that the vexatious applicant may make an access
application, an internal review application or an external review
application only with the written permission of the commissioner.
(6) In this section—
abuse of process, for an access action, includes, but is not limited to,
the following—
2
The corresponding sections in the IP Act, section 127 and section 128, are not reproduced in this guideline as they are in
almost exactly the same terms as the RTI Act provisions, except to the extent that the IP Act also concerns amendment
applications.
3
This should read ‘Information Commissioner’.
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(a) harassing or intimidating an individual or an employee of an
agency in relation to the access action;
(b) unreasonably interfering with the operations of an agency in
relation to the access action;
(c) seeking to use the Act for the purpose of circumventing restrictions
on access to a document or documents imposed by a court.
access action means any of the following—
(a) an access application;
(b) an internal review application;
(c) an external review application.
agency includes a Minister.
engage, for an access action, means make the access action.
115 Declaration may be varied or revoked
(1) The information commissioner may vary or revoke a declaration made
under section 114.
(2) The commissioner may vary or revoke the declaration on the
commissioner’s own initiative or on the application of the person subject
to the declaration.
2.1 Rationale for the provisions
The RTI Act and IP Act confer on the public legally enforceable rights to
access and/or amend personal information held by government agencies.
Although the majority of the public exercise these rights responsibly, in certain
circumstances the public do not use RTI Act and IP Act processes
appropriately. Section 114 of the RTI Act and section 127 of the IP Act are
provisions which are designed to prevent misuse of these rights.
There is a significant public interest in the community having the right to
access and/or amend personal information held by government agencies.
However, there is also a public interest in:
• the efficient, effective and economic performance of public agencies
• avoiding damage to the credibility of the regulatory framework set up by
the RTI Act and IP Act
• promoting the responsible exercise of the right to access and/or amend
personal information held by government agencies; and
• a fairer more equitable service to all members of the community by
making provision for agencies to manage those applicants who tie up a
disproportionate amount of agency resources.
The power of the Information Commissioner to declare that an applicant is
vexatious also protects the Information Commissioner's processes against the
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unnecessary use of time and resources and the disruption to those processes
arising from the repeated institution of groundless applications.4
2.2 Relevant principles in the exercise of the power
By enacting the RTI Act and the IP Act, Parliament has conferred on the
community a right to access and amend personal information held by
government agencies. Any removal or restriction of these rights by a statutory
officer, such as the Information Commissioner, will be exercised with caution.
Chief Justice Barwick in General Steel Industries Inc v Commissioner for
Railways (NSW)5, emphasised that the 'power of peremptory dismissal of
proceedings is to be exercised cautiously and sparingly'. This reflects the
general approach taken by the courts in declaring litigants to be vexatious.
Where the declaration of a person as a vexatious applicant takes the form of a
peremptory dismissal of an application, the Information Commissioner will
exercise the power cautiously and sparingly. This principle is particularly
relevant where a person's right of access to information or access to justice
may potentially be restricted.
A declaration that a person is a vexatious applicant:
must be in writing6
can be made on the Information Commissioner's own initiative or on the
application of one or more agencies7
must not be made in relation to a person without giving the person an
opportunity to make written or oral submissions8
has effect subject to any terms and conditions stated in the declaration9
may include a condition that the person may only make an application
for access, or amendment, internal review or external review with the
written permission of the Information Commissioner.10
2.3 Meaning of vexatious
The term vexatious is not defined in the RTI Act or IP Act and therefore, it
should be interpreted in accordance with its ordinary meaning.
Definition
The Macquarie Online Dictionary defines vexatious as follows:
1. causing vexation; vexing; annoying
2. Law (of legal actions) instituted without sufficient grounds, and
serving only to cause annoyance
4
See for example Jones v Skyring (1992) 66 ALJR 810 at 814; Ramsey v Skyring (1999) 164 ALR 378 at 389 and Attorney-
General for the State of New South Wales v Bar-Mordecai [2009] NSWSC 218 at paragraph [10].
5
[1964] HCA 69.
6
Section 114(1) of the RTI Act and section 127(1) of the IP Act.
7
Section 114(1) of the RTI Act and section 127(1) of the IP Act.
8
Section 114(3) of the RTI Act and section 127(3) of the IP Act.
9
Section 114(4) of the RTI Act and section 127(4) of the IP Act.
10
Section 114(5) of the RTI Act and section 127(5) of the IP Act.
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The term 'vexatious' is also used in the Vexatious Proceedings Act 2005 (Qld)
(Vexatious Proceedings Act) That Act defines11 vexatious proceeding to
include:
(a) a proceeding that is an abuse of the process of a court or tribunal; and
(b) a proceeding instituted to harass or annoy, to cause delay or detriment, or
for another wrongful purpose; and
(c) a proceeding instituted or pursued without reasonable ground; and
(d) a proceeding conducted in a way so as to harass or annoy, cause delay or
detriment, or achieve another wrongful purpose.
Guidance on interpretation of this term can also be taken from the decisions of
courts and tribunals developed over time, that is the common law. Decisions
of the High Court, the Queensland Court of Appeal, the trial division of
Queensland Supreme Court, and a judge of the Queensland Civil and
Administrative Tribunal concerning the interpretation and application of the
provisions of the Queensland RTI Act are authoritative determinations, which,
as a matter of law, the Information Commissioner is bound to follow.
Decisions of other appellate courts and trial judges in Australia on provisions
similar to the RTI Act will be persuasive authority.
2.4 Relevant common law principles
In Oceanic Sun Line Special Shipping Company Inc v Fay12, Justice Deane
considered the meaning of vexatious and confirmed that the focus should be
on the objective effect of a continuation of proceedings in a particular forum,
rather than on the conduct of the plaintiff in selecting or persisting with that
forum.13 Relevantly, Justice Deane stated that:
If the plaintiff is not acting bona fide or in pursuit of a legitimate advantage in
pursuing the proceedings in the legal system of this country, that will, of course,
make it much easier for a continuation of the proceedings to be characterized
as vexatious or oppressive, since there will be little if anything to put into the
balance against the inconvenience which would be sustained by the defendant.
On that approach … "vexatious" should be understood as meaning productive
of serious and unjustified trouble and harassment.
While this interpretation of vexatious was made in the context of determining
the appropriate forum for litigation, the observations of Justice Deane may
provide guidance to agencies in deciding whether the conduct of an individual
is sufficient to warrant the making of a vexatious applicant declaration.
In Attorney General v Wentworth14 Justice Roden reviewed the relevant
authorities15 relating to vexatious proceedings and abuse of process and
11
In the dictionary in the Schedule of the Vexatious Proceedings Act.
12
(1988) 165 CLR 197 at 247.
13
At 247.
14
(1988) 14 NSWLR 481 at 484 (Wentworth).
15
Re Vernazza [1960] 1 QB 197 through to Pedler and Attorney-General for New South Wales [1987] 8 NSWLR 667.
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developed a test for vexatiousness16 which has since been applied with
approval in most Australian jurisdictions. In that test, Justice Roden identified
three categories of vexatious proceedings:
1. Proceedings are vexatious if they are instituted with the intention of
annoying or embarrassing the person against whom they are brought.
2. Proceedings are vexatious if they are brought for collateral purposes and
not for the purpose of having the court adjudicate on the issues to which
they give rise.
3. Proceedings are properly to be regarded as vexatious if, irrespective of the
motive of the litigant, they are so obviously untenable or manifestly
groundless as to be utterly hopeless.
In Hatchett v Bowater Tutt Industries Pty Ltd (No 2)17, Justice von Doussa took
the view that the mere fact that a proceeding is shown to have no foundation
in fact is insufficient to justify a finding that it was commenced vexatiously or
without reasonable cause.
In Re Cameron18, President Fitzgerald in the Queensland Court of Appeal
formulated a broad test for vexatiousness in the context of the repealed
Vexatious Litigants Act 1981 (Qld) as follows:
It is also necessary to decide what makes legal proceedings vexatious.
Although there are sometimes statutory indications, the broad test potentially
concerns such factors as the legitimacy or otherwise of the motives of the
person against whom the order is sought, the existence or lack of reasonable
grounds for the claims sought to be made, repetition of similar allegations or
arguments to those which have already been rejected, compliance with or
disregard of the court’s practices, procedures and rulings, persistent attempts to
use the court’s processes to circumvent its decisions or other abuse of process,
the wastage of public resources, and funds, and the harassment of those who
are the subject of the litigation which lacks reasonable basis…19
2.4.1 Grounds for abuse of process
Particular grounds for abuse of process which have been established through
case law include:
• lack of merits of the claim and ulterior motive test20
• duplicate proceedings already pending or determined and therefore
incapable of serving a legitimate purpose21
• seeking review for a collateral purpose22
• the legitimacy or otherwise of the motives of the person23
16
Wentworth at 491.
17
(1991) 28 FCR 324.
18
[1996] 2 Qd R 218 (Re Cameron).
19
Re Cameron at paragraph 2 (case references omitted).
20
Williams v Australian Electoral Commission and the Greens (1995) 38 ALD 366 .
21
Walton v Gardiner (1993) 177 CLR 378 at 410.
22
Re Cameron.
23
Re Cameron.
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• irrespective of motive, if the application is untenable or manifestly
groundless as to be utterly hopeless24
• the making unsubstantiated or defamatory allegations in applications25
• non-compliance with or disregard of court procedures and processes.26
Importantly, the categories of abuse of process which have established
through the common law are not exhaustive.27 This was acknowledged in
Batistatos, where the court identified that what amounts to abuse of process is
not susceptible of a formulation comprising closed categories.28
Accordingly, other circumstances which arise in future cases may lead to the
identification of additional grounds of abuse of process. This may then serve
to further develop the grounds upon which an abuse of the right of access,
amendment or review may be based under the RTI Act or IP Act.
3.0 Requirements
Section 114(2) of the RTI Act29 requires:
a) the person to have repeatedly engaged in access actions; and
b) 1 of the following must also apply —
i) the repeated engagement involves an abuse of process for an access
action;
ii) a particular access action in which the person engages involves, or
would involve, an abuse of process for that access action;
iii) a particular access action in which the person engages would be
manifestly unreasonable.
When applying to the Information Commissioner for a vexatious applicant
declaration, an agency will need to establish these requirements.
The questions set out in the box below may assist agencies in assessing the
evidence before them and deciding whether to make an application under
section 114 of the RTI Act or 127 of the IP Act.
24
Walton v Gardiner (1993) 177 CLR 378 at 410.
25
Hearl and Mulgrave Shire Council (1994) 1 QAR 557.
26
Re Cameron.
27
Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256 (Batistatos) at 263-265 [5]-[9] per Chief Justice
Gleeson and Justices Gummow, Hayne and Crennan.
28
Batistatos at 265].
29
The requirements in section 127(2) of the IP Act mirror those in section 114(2) of the RTI Act except that they refer to
'access or amendment actions'.
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Questions to ask
FIRSTLY:
Has the person repeatedly engaged in access actions (ie has the
person made access applications, internal review applications
and/or external review applications) again and again?
AND IF SO:
Does the repeated engagement in access actions involve an
abuse of process?
OR:
Does a particular access action involve or would involve an abuse
of process?
OR:
Is a particular access action manifestly unreasonable?
Sections 3.1 to 3.3 of this guideline provide guidance on the factors to be
taken into account when considering these questions.
3.1 Has the person repeatedly engaged in access actions?
Section 114(6) of the RTI Act30 defines access action as an:
• access application
• internal review application
• external review application.
The way the section is structured means that a vexatious applicant declaration
may be based on a single access action that involves an abuse of process
or is manifestly unreasonable if the applicant has a history of making access
applications. However, under section 114(2)(a) of the RTI Act an agency must
firstly establish that the person has repeatedly engaged in access actions.31
Therefore, an agency cannot apply to have a person declared vexatious if that
person has only made a single access application.
In deciding whether a person has repeatedly engaged in access actions, the
following considerations may be relevant:
• whether the requests were the same or substantially the same as earlier
applications
• whether a reasonable basis has been disclosed for again seeking
access
30
Section 127(6) of the IP Act is in similar terms but also defines amendment action as an amendment application.
31
Section 127(2)(a) of the IP Act (also including amendment actions).
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It is now possible that a serial access applicant whose multiple requests have
concerned different subjects can be declared a vexatious applicant in
circumstances where a single access action involves an abuse of process or
is manifestly unreasonable.
3.2 Does the repeated engagement in access actions or the particular
access action involve an abuse of process?
The statutory test in section 114 of the RTI Act and section 127 of the IP Act
provides that the repeated engagement in access actions or a particular
access action will involve an abuse of process. As discussed in Grounds for
abuse of process
, the categories of abuse of process which have been established through the
common law are not exhaustive.32 As a guide to decision makers, the
legislation includes examples of conduct which may be considered to
comprise an abuse of process:33
• harasses or intimidates an individual or an employee of an agency in
relation to the access action, or
• unreasonably interferes with the operations of an agency in relation to
the access application, or
• seeks to use the Act for the purpose of circumventing restrictions on
access to a document or documents imposed by a court.
Applications for a vexatious person declaration may be based on conduct not
listed as an example in the legislation.
3.2.1 Harassing or intimidating an individual or an employee or employees of
the agency or agencies
The meaning of the terms harassment and intimidation were considered by
the Information Commissioner in the context of section 42(1)(ca) of the
repealed FOI Act.34
In Sheridan, the Information Commissioner was of the view that the ordinary
meanings of those words should be used. The definitions referred to by the
Information Commissioner in that case35 are set out in the example box below:
32
Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256 (Batistatos) at 263-265 [5]-[9] per Chief Justice
Gleeson and Justices Gummow, Hayne and Crennan.
33
Section 114(6) of the RTI Act; section 127(6) of the IP Act.
34
See for instance Sheridan and South Burnett Regional Council; Local Government Association of Queensland Inc; Dalby
Regional Council and the Crime and Misconduct Commission (Third Party) (Unreported, Queensland Information
Commissioner, 9 April 2009) (Sheridan)).
35
Sheridan, at paragraph 193.
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Definitions
The Macquarie Online Dictionary provides the following definitions:
harass: to trouble by repeated attacks, ... to disturb persistently;
torment
intimidate: to make timid, or inspire with fear; overawe; cow ... to
force into or deter from some action by inducing fear
In Sheridan, the Information Commissioner found that:
• acts which induce fear or force a person into some action by inducing
fear or apprehension are acts of intimidation
• acts which persistently trouble, disturb or torment a person are acts of
harassment.36
In the same case, the Information Commissioner found that serious acts of
harassment and intimidation had occurred based on the:
• information provided by the former CEO that he had received a
threatening phone call from an unknown caller with reference to the
applicant and had been subject, in the presence of his children, to an act
of physical violence
• numerous postings that had been made on a website by people claiming
to be the applicant's supporters
• use of FOI applications by the applicant and people claiming to be her
supporters.
Although Sheridan was decided in the context of section 42(1)(ca) of the
repealed FOI Act, the findings of the Information Commissioner in that
decision provide examples of the type of conduct which may be found to
constitute harassment or intimidation.
In Price and Queensland Police Service37, the applicant's conduct was
described as harassment by the Information Commissioner.38 The Information
Commissioner found that some antagonism had developed between the
applicant and the constable, resulting in insulting comments from the applicant
about the constable. The applicant had expressed the view that the constable
committed perjury in relation to a criminal charge, resulting in conviction
against the applicant. The Information Commissioner said:
On the material before me it would seem reasonable to conclude that the
applicant's conduct may have been a source of annoyance or inconvenience for
(the constable). The applicant has made it known in public that he dislikes
and/or distrusts (the constable) and has made insulting remarks. While, such
36
At paragraph 200.
37
Unreported, Queensland Information Commissioner, 29 June 2007.
38
Though not serious harassment for the purpose of section 42(1)(ca) of the repealed FOI Act.
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conduct might amount to harassment it does not amount to intimidation and it
certainly does not amount to a serious act of harassment or intimidation.39
The findings of the Information Commissioner in Price, indicate that a person's
right to access information will not automatically be lost if they:
• use abusive or offensive language
• annoy a public official
• exercise freedom of thought and expression in other forums by
expressing views in public about the agency.
3.2.2 Unreasonably interfering with the operations of the agency or agencies
If an agency contends that an access action would unreasonably interfere with
the operations of an agency, the agency should demonstrate that the applicant
has either purposefully or otherwise substantially and unreasonably diverted
the resources of the agency.
The following may be relevant in deciding whether the interference amounts to
an abuse of process:
• the resources that would be used in:
o identifying, locating or collating the documents in the filing system
of the agency
o making a copy, or edited copy of the documents
o examining the documents or consulting with an entity in relation to
the application
• the quantity of documents involved
• the location of the documents and storage arrangements
• any efforts by the agency to narrow the scope of the application
• the operations of the agency that would be interfered with and how
those operations would be interfered with (with reference to quantifiable
data).
Due to an absence of common law authority on this ground, the principles
relevant to section 41 of the RTI Act and section 60 of the IP Act may assist
agencies in identifying what they need to establish if relying on this ground.40
Those sections allow an agency to refuse to deal with an access (or
amendment) application if it considers the work involved in dealing with the
application or all the applications would, if carried out—
• substantially and unreasonably divert the resources of the agency from
their use by the agency in the performance of its functions; or
• interfere substantially and unreasonably with the performance by the
Minister of the Minister’s functions.
39
At paragraph 69.
40
Section 41 of the RTI Act and section 60 of the IP Act re-enact section 29 of the repealed FOI Act.
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Section 29 of the repealed FOI Act was found by the Information
Commissioner to apply where:
• searches were estimated by the agency to take over 12 weeks to
complete at a cost of $27,50041
• the existence of documents was not indicated42
• the application was to a small agency with limited resources.43
The application of section 29(1)(a) of the repealed FOI Act was considered in
a group of connected and overlapping external review applications.44 The
Information Commissioner formed the view that dealing with the first, and
therefore each subsequent, application would result in a substantial and
unreasonable diversion of resources. The application essentially sought
access to any documents requested but not previously provided to the
applicant in over 80 prior applications.
In that case the Information Commissioner estimated that dealing with the
application would require all the resources of the FOI Unit of the agency for a
period of approximately five weeks, resulting in:
• the agency not dealing with approximately 30 other FOI applications
• delay and backlog
• delays to other applicants receiving a decision within the timeframe and
their review rights.
Further, substantial resources of the IT personnel and archives officers would
also be required and therefore diverted from performing other agency
functions.
The agency stated that of more than 80 previous applications made by the
applicant:
• documents were released in full in 25 applications
• 73 applications proceeded to internal review
• 67 applications proceeded to external review
• 50 of the 67 applications that proceeded to external review involved
issues regarding whether agency searches had been sufficient.
The Information Commissioner considered it was unreasonable to divert such
resources to processing one FOI application, particularly when:
• there was little prospect of any responsive documents being located
41
Seal and Queensland Police Service (Unreported, Queensland Information Commissioner, 26 June 2007).
42
Price and Crime and Misconduct Commission (Unreported, Queensland Information Commissioner, 22 November 2002)
where the possibility of finding documents responsive to the applicant’s FOI application was described as ‘remote’.
43
Price and Crime and Misconduct Commission. At the time, the Crime and Misconduct Commission only had one officer
dedicated to dealing with FOI access applications and the processing of the FOI application would have required extensive
identifying, locating and collating of documents. See also Re Cunningham and Rural Adjustment and Finance Corporation
[1996] WAICmr 29 (27 May 1996) where only one officer of the agency was able to perform the task which was estimated to
take 14 hours per volume of documents with 7 volumes in total.
44
There is no reported decision for this external review as it was resolved informally.
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• any responsive documents located may also be duplicates of
documents already disclosed to the applicant, or provided to the agency
by the applicant.
In the cases summarised below, the Victorian Court of Appeal and New South
Wales Administrative Decisions Tribunal considered provisions similar to
section 29(1)(a) of the repealed FOI Act in their respective FOI legislation.
Secretary, Dept Treasury and Finance v Kelly45
In November 1999 the State of Victoria sought an order from the Federal
Court to limit the extent of discovery it was required to make in related
proceedings concerning the explosion and fire in 1998 at the Esso/BHP plant
at Longford. It claimed, given the extent of the litigation, it would be oppressive
if it had to provide discovery in the normal way. The judge agreed that it
would be oppressive to the State if it were forced to provide normal discovery
and ordered discovery of only a limited category of documents.
Subsequently Esso, through its solicitor, Kelly, made 321 separate written FOI
applications in the same fortnight period, all of which were related and directed
to the circumstances surrounding the explosion and fire. Fifty-four almost
identical requests were sent to each of five departments. Within a fortnight
Esso made a further 51 written requests for access to documents.
In deciding that the FOI applications would substantially and unreasonably
divert the agency's resources from its other operations, the FOI officer
undertook a sampling exercise that found that it would take 14 years to
complete processing the applications. The sampling process was described
as follows:
In determining which files to examine for the purpose of ascertaining whether
they contained the documents which were sought by the respondent, [the FOI
officer] undertook a sampling process with the assistance of a former employee
of the Energy Project Division who had managed its records system. He
examined the 321 requests and told [the FOI officer] that there were
approximately 12,500-13,000 files and 7,000 document records in existence
which came from the Energy Project Division and that, of those files,
approximately 2,600 related to the reform of the gas industry. [The FOI officer]
said she was told that virtually all of the 2,600 files would contain documents
which would fall within the terms of the requests and it therefore seemed
reasonable to her to select a sample of those files. Thus, she selected by way
of random selection a sample of 21 files from the 2,600 files of which she
reviewed ten. On the basis of the time taken to conduct a review of the ten files,
she estimated that it would take one FOI officer working full-time approximately
14 years to review the 2,600 files.46
45
[2001] VSCA 246 (21 December 2001) (Kelly).
46
Kelly at paragraph [32]. See also the VCAT decision reported at Kelly v DT&F [2001] VCAT 419 at paragraphs [26]-[28].
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The Victorian Civil and Administrative Tribunal:
• was not persuaded by the evidence that the processing of the
respondent's requests, even if grouped as a single request, would ‘more
probably than not substantially and unreasonably divert the resources of
the respondent’
• was critical of the sampling process undertaken
• did not accept that a selection of ten files from a total base of 2,600 was
a ‘convincing measure’ of the time likely to be taken to review the 2,600
files47
• set aside the Department's determination on this point and this was
upheld by the Victorian Court of Appeal on 14 March 2001.48
On appeal, the Court of Appeal found that it was open to the Tribunal not to
accept the Department's claim that to process the requests it would have to
examine 2,600 files. The Court of Appeal formed that view on the basis that
the file index showed that many of the files were not relevant to the requests
and, therefore, would not have to be examined.49
The Court of Appeal also found that it was open to the Tribunal to conclude
that:
• the FOI officer had not made relevant inquiries from persons in the
Department who might have been able to point to the location of a
substantial number of documents sought by the respondent
• the sampling evidence was inadequate; the FOI officer did not explain
why 21 files were selected and why she only examined ten of them;
moreover, some of the 10 files took only a short time to examine
• the FOI officer was inexperienced
• the FOI officer did not assess the file index or the list of files given to her
by another officer50
• in light of the fact that 2,600 files did not have to be examined, the
evidence of the FOI officer as to the time that would be required to
process the respondent's requests were of little relevance51.
Cainfrano v Director General, Premier's Department52
The applicant sought access to a broad range of documents from a 10 year
period.
The NSW Department estimated that processing the request would take
approximately 229.5 hours. Based on a sample size of the files identified, the
FOI officer estimated that there would be 11,400 pages and that if any further
files were identified as relevant to the request, increased time would be
required.
47
At paragraph [34].
48
At paragraph [35].
49
At paragraph [63].
50
At paragraph [63].
51
At paragraph [63].
52
[2006] NSWADT 137.
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On the basis of those estimates, the Department refused to deal with the
applicant's request for documents on the basis that it would involve a
substantial and unreasonable diversion of resources under section 25(1)(a1)
of the now repealed Freedom of Information Act 1989 (NSW). The applicant
applied to the Administrative Decisions Tribunal for review of the refusal to
deal with his application.
President O'Conner of the Tribunal noted that similar legislative provisions
were found in Commonwealth and FOI laws of other states. However, he
observed that the scale of request which may be seen as 'substantially and
unreasonably' diverting an agency's resources 'admits of no ready or precise
measure'.53
In examining the relevant authorities, President O'Conner identified54 the
following decisions in which an adverse finding had been made against an
applicant in respect of 'substantial and unreasonable' diversion of resources:
– a request ‘breathtaking in its scope’, estimates in the case put in different
forms – in terms of lineal metres of filed and archived documents affected by
the request (465.18 lineal metres mentioned as to one part of the request),
document estimates varied between a million and twenty million (Wright v
SECV [1998] VCAT 162)
– 16,000 boxes, years of officer time for a team of people (Coulston v Office of
Public Prosecutions [2001] VCAT 10 )
– ‘tens of thousands of documents’ (Allanson and Queensland Tourist & Travel
Corporation [1997] QICmr 20; (1997) 4 QAR 219)
– 600 policy files (as distinct from documents or pages) relating to Health
Department role in the approval of use of pituitary growth hormone (Re SRB
and SRC and Department of Health, Housing Local Government and
Community Services (1994) 33 ALD 171 - ‘probably the widest ranging series of
FOI requests that has ever come before this Tribunal’, at [40] )
– 22,000 documents, 18 months of officer time (Meretfield v Department of
Human Services [1998] VCAT 299)
– 22,000 documents, 24 months of officer time (Re A and Dept of Human
Services, VCAT, unreptd, Davis PM, 4 November 1998)
– 67,000 pages, 15-30 weeks of officer time (Re Chapman and Victoria Parks,
VCAT, unreptd, Ball SM, 6 December 1999)
President O'Conner identified55 nine factors relevant in the assessment of a
case of this nature:
(a) the terms of the request, especially whether it is of a global kind or generally
expressed request; and in that regard do the terms of the request offer a
‘sufficiently precise description to permit an agency, as a practical matter, to
locate the documents sought within a reasonable time and with the exercise of
reasonable effort’ (see Rowlands P in [Re Borthwick and University of
Melbourne (1985) 1 VAR 33] at 35)
53
At paragraph [44].
54
At paragraph [51].
55
At paragraph [62].
Office of the Information Commissioner (Queensland) 15
Guidelines
(b) the demonstrable importance of the document or documents to the applicant
may be a factor in determining what in the particular case is a reasonable time
and a reasonable effort (see further Rowlands P in Re Borthwick)
(c) more generally whether the request is a reasonably manageable one giving
due, but not conclusive, regard to the size of the agency and the extent of its
resources usually available for dealing with FOI applications
(d) the agency estimate as the number of documents affected by the request, and
by extension the number of pages and the amount of officer time, and the
salary cost
(e) the reasonableness or otherwise of the agency’s initial assessment and
whether the applicant has taken a co-operative approach in redrawing the
boundaries of the application
(f) the time lines binding on the agency (in New South Wales as compared to
other jurisdictions they are quite tight, for example, 21 days to respond to a
request, 14 days to respond to an internal review request, as compared to 45
days and 14 days respectively in Victoria)
(g) the indication that is found in the Annual Report reporting requirements
suggesting that requests involving more than 40 hours’ work are seen as lying
at the upper end of the range; suggesting at least that the view of government
administrators is that a processing time that goes well beyond 40 hours may
properly raise concerns
(h) regard needs to be had to the degree of certainty that can be attached to the
estimate that is made as to documents affected and hours to be consumed;
and in that regard, importantly whether there is a real possibility that
processing time may exceed to some degree the estimate first made
(i) possibly, the extent to which the applicant is a repeat applicant to the agency
in respect of applications of the same kind, or a repeat applicant across
government in respect of applications of the same kind, and the extent to
which the present application may have been adequately met by those
previous applications.
After weighing those factors against the evidence in this case, President
O'Conner:
• was satisfied that the diversion of the Department's resources would
have been 'substantial' and 'unreasonable'
• noted that although this case was not 'at the worst end of the spectrum
of examples of voluminous requests' it was not necessary that the extent
of the 'unreasonableness' be overwhelming56
• stated that if the applicant was to make any further requests they would
have to be in a 'more precise and focused form'57
3.2.3 Seeking to use the Act for the purpose of circumventing restrictions on
access to a document or documents imposed by a court
Where a court has restricted access to a document or documents, and an
applicant attempts to access those documents under the RTI Act for the
purpose of circumventing those restrictions, the access action may amount to
an abuse of process.
The purpose behind this provision is to prevent interference in the proper
administration of justice. Accordingly, Court ordered restrictions on access to
56
At paragraph [65] referring to Prasad v Minister for Immigration (1985) 65 ALR 549 at 561 per Justice Wilcox.
57
At paragraph [66].
Right to Information and Privacy Guidelines 16
Decisions of the Information Commissioner
Vexatious applicant declarations
documents, such as suppression orders must be observed and not rendered
meaningless by disclosure under the RTI Act.
Where an agency claims that an applicant's access action aims to utilise the
RTI Act to circumvent a court ordered restriction on access to a document, the
agency should specifically identify and provide evidence of the restriction
imposed by the court and indicate how that restriction applies to the access
action.
3.3 Is the access action manifestly unreasonable?
The RTI Report suggested that the criteria under section 96A(4) of the repealed
FOI Act should be expanded to include the criteria used by the United Kingdom
(UK) Information Commissioner including the requirement that the application
'can otherwise fairly be characterised as obsessive or manifestly
unreasonable'.58
Section 114(2)(b)(iii) of the RTI Act provides that the Information Commissioner
can make the declaration if satisfied that a particular access action in which the
person engages would be manifestly unreasonable.
The term manifestly unreasonable is not defined in the RTI Act. Therefore,
the ordinary meanings of those words should be used when applying this
section of the RTI Act.
Definitions
In the Macquarie Online Dictionary, the following definitions are
provided:
manifestly: readily perceived by the eye or the understanding;
evident; obvious; apparent; plain
unreasonable: not guided by reason or good sense; not based
on or in accordance with reason or sound judgement;
exceeding the bounds of reason; immoderate; exorbitant
The UK Information Commissioner has previously considered the meaning of
'obsessive or manifestly unreasonable' requests.
In London Metropolitan University59 Assistant Commissioner Boyd said, in
relation to requests that can fairly be characterised as obsessive or manifestly
unreasonable:
It will usually be easier to recognise such cases than define them. They will be
exceptional – public authorities must not be judgmental without good cause. An
apparently tedious request, which in fact relates to a genuine concern, must not
be dismissed. But a public authority is not obliged to comply with a request
which a reasonable person would describe as obsessive or manifestly
58
FOI Independent Review Panel, The Right to Information, Reviewing Queensland’s Freedom of Information Act, June
2008 (RTI Report), page 206.
59
UK Information Commissioner, FS50085398, 8 August 2006.
Office of the Information Commissioner (Queensland) 17
Guidelines
unreasonable. It will obviously be easier to identify such requests when there
has been frequent prior contact with requester or the request otherwise forms
part of a pattern, for instance when the same individual submits successive
requests for information. Although such requests may not be “repeated” in the
sense that they are requests for the same information, taken together they may
form evidence of a pattern of obsessive requests so that an authority may
reasonably regard the most recent as vexatious.60
In Transport for London61 the complainant submitted a number of requests
between February and June 2005 mainly relating to the agency’s pension fund.
The complainant had already been involved in proceedings with the agency at
the Employment Tribunal and the information at the centre of the request in
question directly concerned these proceedings. The Information Commissioner
said:
The Commissioner has reviewed the nature and volume of correspondence
generated by the FOI requests submitted by the complainant. The
Commissioner accepts that this request can be seen as the culmination of a
pattern of requesting behaviour that could be considered to be manifestly
unreasonable by a dispassionate person. In reaching this conclusion, the
Commissioner has paid particular attention to the suggestion in his guidance
that vexatious cases 'may well arise in connection with a grievance or complaint
which an individual is pursuing against the authority'.62
Although there is an absence of interpretation of the term 'manifestly
unreasonable' in the context of vexatious proceedings, common law
interpretation of the term 'without reasonable grounds' may provide agencies
with some assistance in determining whether an access action could be
characterised as manifestly unreasonable.
In Gargan v Kippin Investments Pty Ltd63 Justice Perram of the Federal Court
of Australia said:
... whether a proceeding is instituted without reasonable grounds is a different
question to, although not wholly disconnected from, the inquiry into a
proceeding’s legal merits. The wheat, no doubt, must be separated from the
chaff but in this area the question is whether what is before the court contains
any wheat at all. … it will be usually of some assistance… to ask whether the
issues brought to the court for determination are manifestly hopeless or devoid
of merit. It is, in that context, important to distinguish the difficult from the
ridiculous and the unlikely from the hopeless.64
In Garrett and Anor v Mildara Blass Ltd and Ors; Attorney-General for the
State of South Australia v Garrett65 Justice Layton of the Supreme Court of
South Australia said:
Whether proceedings have been instituted vexatiously is an objective question
to be “determined by examining the number and nature of proceedings which
have been instituted by the defendant.
60
At paragraph 17.
61
UK Information Commissioner, FS50090632, 10 April 2007.
62
At paragraph 47.
63
[2009] FCA 398. This case is also cited as Official Trustee in Bankruptcy v Gargan (no 2)
64
At paragraph [6].
65
[2009] SASC 19.
Right to Information and Privacy Guidelines 18
Decisions of the Information Commissioner
Vexatious applicant declarations
The proper approach for a court in considering whether they were instituted
without reasonable ground is to determine whether the proceedings instituted
by the alleged vexatious litigant were “utterly hopeless or had no prospect of
success.66
The definition of vexatious proceeding set out in the Vexatious Proceedings
Act67 provides that proceedings will be vexatious where they are 'instituted or
pursued without reasonable ground'. Although the requirements under section
114 of the RTI Act are not identical to the provisions in the Vexatious
Proceedings Act, decisions of the Supreme Court of Queensland which have
made declarations that a litigant or proceeding is vexatious, may provide
guidance to agencies wishing to rely on this ground.68
4.0 Applying to the Information Commissioner
4.1 Initial considerations
Before making an application for a vexatious applicant declaration, agencies
should consider:
• whether it is possible the conduct will abate with the passage of time
• whether the conduct has already abated
• the passage of time since the person's last access action
• the period of time between the last access action and those prior.
In some cases, applications for vexatious applicant declarations are made in
the context of an ongoing grievance between an agency and applicant. This
grievance is often long term and one which the agency has not been able to
satisfactorily resolve. The box below sets out examples of such situations and
a recommended approach for agencies to take, before proceeding with an
application for a vexatious applicant declaration:
Examples
1. The way in which an agency delivers a service can contribute to a
grievance— it may be unfair for such affected persons to be the
subject of a vexatious applicant declaration and as a result lose their
access rights under the RTI Act or IP Act.
2. Where agencies are in conflict with an applicant about a
particular decision made by the agency— the agency needs to be
sure it has grounds to support the making of an application for a
vexatious applicant declaration and is not motivated solely by the
grievance.
continued next page…
66
At paragraph [112] and [113] quoting Attorney-General for South Australia v Piepkorn [2005] SASC 425.
67
See section 2.3 of this guideline.
68
See for example, Brisbane City Council and Mathews (Unreported, [2006] QSC 025, Justice Fryberg, 9 February 2006)
and Lohe v Mansukhani (Unreported, [2007] QSC 069, Justice Mackenzie, 13 April 2007).
Office of the Information Commissioner (Queensland) 19
Guidelines
Examples (cont.)
3. Where an applicant has repeatedly applied for access to
information about a particular public service employee— it will
generally be more appropriate for another person within the agency
to decide whether or not the agency should apply for a vexatious
applicant declaration.
4. Where the decision maker is a Chief Executive Officer (CEO) and
the repeated access applications concern the affairs of the CEO— it
may be prudent for the CEO to seek independent legal advice on
the prospects of an application for a vexatious applicant
declaration.
The Information Commissioner has also made the following observations
which agencies should take into account before making an application for a
vexatious applicant declaration:
• the discretion to declare an applicant vexatious will be used cautiously
and sparingly
• agencies should not apply to the Information Commissioner in lieu of
exercising their own powers
• agencies should take corrective measures if their service delivery
approach has entrenched a grievance or conflict with the applicant
• the Information Commissioner will be mindful of unrepresented
applicants who have made their best endeavours to put forward their
case
• any exercise of the discretion will be respectful of the lawful obligations
of agencies in service delivery, and citizens' rights generally.
4.2 How to make an application
Once an agency has decided to proceed with making an application for a
vexatious applicant declaration, it may apply to the Information Commissioner
in writing in one of the following ways:
In person: Level 8, 160 Mary St Brisbane
Post: PO Box 10143, Adelaide Street, Brisbane, Qld 4000
Fax: 07 3405 1122
Email: administration@oic.qld.gov.au
4.3 What to include in an application
An agency applying for a vexatious applicant declaration under the RTI Act or
IP Act should provide as much evidence as possible to the Information
Commissioner—this will help the Information Commissioner provide you with a
quicker decision.
Right to Information and Privacy Guidelines 20
Decisions of the Information Commissioner
Vexatious applicant declarations
In an application, an agency should identify:
• grounds on which the application is based, supported by as much detail
as possible
• evidence which the agency wishes the Commissioner to consider
(including copies of the access actions relied upon)
• submissions on the evidence which explain the basis for the application
• any terms and conditions to which the agency considers the declaration
should be made subject.
An agency should also ensure the following details relating to the person's
access actions are included in the application:
• a summary of the access actions made
• number of documents/pages involved
• description of the terms of the applications
• the outcome of the access applications
• details of any subsequent review.
4.4 Processing an application
Following receipt of the application, the Information Commissioner will
examine the agency's application and the evidence provided. If necessary,
the Information Commissioner may ask the agency to provide further evidence
or information on particular issues.
The Information Commissioner will provide the respondent, ie the person
whom the agency is seeking to have declared vexatious, with a copy of the
agency's application and the evidence. The Information Commissioner will
ask the respondent to provide submissions in response to the agency's
application. The respondent's submissions will then be provided to the
agency for its consideration and further response (where necessary).
The Information Commissioner may hold an oral hearing to give the
participants an opportunity to make submissions and if necessary, make
directions about how the application is to proceed.
4.5 The decision
After the participants have been given the opportunity to present their case
and the Information Commissioner has considered all the evidence, the
Information Commissioner will decide whether or not to declare the person a
vexatious applicant.
If the Information Commissioner decides to make a vexatious applicant
declaration, written notice of this decision will be issued to the agency and
respondent.
Office of the Information Commissioner (Queensland) 21
Guidelines
The declaration will have effect subject to the terms and conditions stated in
the declaration (if any).69 A declaration may include a condition that the
vexatious applicant may not make an access application, internal review
application or external review application unless the Information
Commissioner has granted them permission to do so.
If the Information Commissioner is not satisfied that the agency has
established the requirements in section 114(2) of the RTI Act or section 127(2)
of the IP Act, the Information Commissioner cannot make a vexatious
applicant declaration.70 In such a case, the Information Commissioner will
inform the agency and respondent, in writing, of the decision not to make the
declaration and provide reasons to the agency for dismissing the application.
4.6 Right of review
A person subject to a vexatious applicant declaration made by the Information
Commissioner can apply to QCAT for review of the decision:
121 Appeal to Queensland Civil and Administrative Tribunal for review
of vexatious applicant declaration
A person subject to a declaration made under section 114 may apply, as
provided under the QCAT Act, to QCAT for a review of a decision of the
information commissioner to declare the person a vexatious applicant.71
The Queensland Civil and Administrative Tribunal (QCAT) commenced
operation in December 2009 pursuant to the Queensland Civil and
Administrative Tribunal Act 2009 (Qld) (QCAT Act).
If a person wishes to apply to QCAT for review of a decision of the Information
Commissioner declaring them a vexatious applicant, refer to the QCAT Act for
information regarding QCAT timeframes, rules and procedures.
NOTE
Only the person who is subject to the vexatious applicant declaration can
apply to QCAT for review of the declaration.
If the agency has not succeeded in an application to have a person declared
vexatious, the only right of review from that decision is to the Supreme
Court of Queensland (see below).
69
Section 114(4) of the RTI Act and section 127(4) of the IP Act.
70
Section 114(2) of the RTI Act and section 127(2) of the IP Act.
71
The corresponding section in the IP Act is section 133.
Right to Information and Privacy Guidelines 22
Decisions of the Information Commissioner
Vexatious applicant declarations
4.6.1 Review by Supreme Court
In some circumstances:
• a person subject to a vexatious applicant declaration who is dissatisfied
with a decision of the Information Commissioner, or
• an agency who has not succeeded in an application to have a person
declared vexatious,
can also seek review of the Information Commissioner's decision by the
Supreme Court of Queensland by making an application for a statutory order
of review under section 20 of the Judicial Review Act 1991 (Qld) (JR Act).72
An application for review under the JR Act can only be made on one or more
of the grounds set out in section 20(2)(a)-(i) of the JR Act.
For information about commencing proceedings in the Supreme Court of
Queensland go to www.courts.qld.gov.au.
4.7 Varying or revoking a declaration
The Information Commissioner may vary or revoke a vexatious applicant
declaration73 on the:
• Information Commissioner's own initiative
• application of the person subject to the declaration.74
A person subject to a declaration who is seeking to have it varied or revoked
should make a written application to the Information Commissioner which sets
out the reasons for the request.
5.0 Further guidance
The Information Commissioner did not make any vexatious applicant
declarations under section 96A of the repealed FOI Act.
As at the date of this guideline, no vexatious applicant declarations have been
made under section 114 of the RTI Act or section 127 of the IP Act.
However, the Information Commissioner made a number of decisions under
section 77 of the repealed FOI Act,75 not to deal with or to further deal with a
particular external review application on the basis that the application was
vexatious.
72
Copies of Queensland legislation can be obtained at www.legislation.qld.gov.au/OQPChome.htm
73
Section 115(1) of the RTI Act and section 128(1) of the IP Act.
74
Section 115(2) of the RTI Act and section 128(2) of the IP Act.
75
Section 94 of the RTI Act and section 107 of the IP Act replicate the requirements of section 77 the repealed FOI Act.
Office of the Information Commissioner (Queensland) 23
Guidelines
5.1 Case summaries
This section of this guideline sets out summaries of several decisions:
• made by the Information Commissioner under section 77(1) of the
repealed FOI Act
• from other Australian jurisdictions concerning vexatious litigants.
These decisions may be helpful to agencies in interpreting the term 'vexatious'
and deciding whether to make an application for a vexatious applicant
declaration under the RTI Act or IP Act.
The decisions from other jurisdictions concerning vexatious litigants also
provide general guidance on the meaning of 'vexatious' and the requirements
for establishing abuse of process.
Price and Local Government Association of Queensland Inc76
The applicant made four consecutive FOI applications to the Local
Government Association of Queensland (LGAQ) seeking all documents held
by LGAQ relating to 'myself, my family and/or my property et cetera'. LGAQ
decided that the documents had already been dealt with under previous FOI
applications made by the applicant. Accordingly, LGAQ limited the scope of
the latest application to documents that came into its possession or control
after the date of the applicant's prior applications in the same terms.
The applicant sought external review of this decision and also submitted that
because he had again applied for access to all documents, this entitled him to
a further review of matters that had already been decided on external review.
The Information Commissioner decided not to deal with the applicant's request
on the basis that it was vexatious. The reasons given were that any
documents responsive to the terms of the applicant's earlier access
applications had been dealt with in finalised or soon-to-be finalised reviews by
the Information Commissioner. Secondly the request for a review of a review
decision 'would clearly be vexatious, and contrary to the principle that a
decision by a court or tribunal resolves the issues in dispute between the
parties'.
The Information Commissioner made the following observation about
vexatious conduct:
A litigant cannot seek multiple hearings of the same issues between parties - that
is vexatious and oppressive to the other party and to the relevant court or tribunal,
and unfair to other citizens waiting their turn to use the dispute resolution services,
provided from public funds, by courts and tribunals.77
76
Unreported, Queensland Information Commissioner, 29 June 2001.
77
At paragraph 15.
Right to Information and Privacy Guidelines 24
Decisions of the Information Commissioner
Vexatious applicant declarations
Price and Queensland Police Service78
During a period in excess of four years, the applicant made 12 applications to
the Information Commissioner for external review of decisions made by the
Queensland Police Service. In this particular review, the applicant sought to
initiate another ‘hearing’ of the issues previously addressed in the earlier
external reviews by the Information Commissioner.
Under section 77(1) of the repealed FOI Act, the Information Commissioner
decided not to deal with the application on the basis that it was vexatious to
the extent that it revisited matters previously addressed in earlier external
reviews.
Hearl and Mulgrave Shire Council79
The applicant's initial FOI access requests were framed in the form of
questions rather than seeking access to documents.
The Information Commissioner considered that while there was nothing to
prevent the agency from answering the questions, the repealed FOI Act
conferred a right of access to information on the public, not a right to have
questions answered. The application was found to be misconceived and
lacking substance under section 77(1) of the repealed FOI Act.
The applicant also made applications for documents that he knew did not exist
including:
• applications by himself to the agency
• approvals extended by the agency to change a particular fisheries
habitat reserve to freehold.
The Information Commissioner was of the view that the purpose of the
applications was to make a point to the agency that the documents did not
exist.
The Information Commissioner considered that the term 'vexatious' was used in
section 77 of the repealed FOI Act:
…in the sense illustrated by the Shorter Oxford Dictionary when it says "Of legal
actions: instituted without sufficient grounds for the purpose of causing trouble
or annoyance to the defendant" (cf. Aspar Autobarn Co-operatives Society v
Dovala Pty Ltd (1987) 74 ALR 550 at p.554, where this meaning was approved
by the Federal Court of Australia in a comparable statutory context).80
78
Unreported, Queensland Information Commissioner, 29 June 2007. Although note that this case is at the time of writing
under judicial review.
79
(1994) 1 QAR 557.
80
Hearl at paragraph 36.
Office of the Information Commissioner (Queensland) 25
Guidelines
The Information Commissioner decided not to deal with the application under
section 77(1)(a) on the basis that the applicant's actions were instituted
without sufficient grounds for the purpose of causing trouble or annoyance to
the defendant.
The application in this case could also have been considered as an application
instituted for another wrongful purpose—this was identified as an indicator of
vexatiousness in Wentworth and Walton v Gardiner.81
Attorney General of NSW v Wentworth82
The Attorney General of New South Wales applied to the Supreme Court to
have a litigant, Wentworth, declared a vexatious litigant on the basis of 28
notices of motion, 16 summonses, and more than 180 documents containing
allegations made by Wentworth of fraud, perjury, and conspiracy to pervert the
course of justice.
Justice Roden discussed the definition of vexatiousness in the context of Ms
Wentworth's litigious activity. Justice Roden declared many of the orders
sought had been inappropriate, unprecedented and even beyond the powers
of the court. For example, against one respondent, a serving police officer,
Wentworth sought an order that he be removed from the Police Force of New
South Wales permanently, and be declared to be a disgrace to the Police
Force of New South Wales. Justice Roden was of the view that the nature of
these proceedings warranted a serious discussion of vexatiousness.
In this case, Justice Roden formulated a test for vexatiousness83 which has
since been applied with approval in most Australian jurisdictions. However,
Justice Roden did not declare Ms Wentworth as vexatious.
Justice Roden found that:
• a subjective element, such as malice, lack of bona fides, or ulterior
motive, were appropriate and necessary to give significance to the term
‘vexatious’84
• some of the defendant's allegations seemed to be prima facie
supportable and this seemed to outweigh the considerable abuse of
process involved.85
Mulder and Centrelink86
Under section 42B of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT
Act) the Australian Administrative Appeals Tribunal (AAT) has a similar power
to that of the Information Commissioner under section 94 of the RTI Act to
81
Walton v Gardiner (1993) 177 CLR 378 at 410.
82
(1988) 14 NSWLR 481 see discussion in section 2.4 of this guideline.
83
At page 491.
84
At page 487.
85
At page 505.
86
[2005] AATA 1022.
Right to Information and Privacy Guidelines 26
Decisions of the Information Commissioner
Vexatious applicant declarations
dismiss applications made to the AAT on the basis that the application is
frivolous or vexatious.
In this case, Centrelink applied to the AAT for an order to dismiss the
applicant's eight FOI requests on the grounds that they were frivolous or
vexatious. The AAT identified that the eight FOI applications fell into the
following categories:
• lodged in respect of substantively the same subject matter
• no internal review conducted
• the request is invalid and the prospects of success "utterly hopeless"
• the applicant had been told on at least two previous occasions that the
documents he seeks do not exist
• fees had not been paid nor waived
• the applicant has the documents requested and there is no practical
value in proceeding to a hearing
• the applicant has not co-operated with the agency’s efforts to respond to
his request
• they have all been made with the intention to annoy the officers of the
agency.87
The AAT found that:
• the history of the applicant's requests clearly demonstrated a pattern of
behaviour in which he sought to annoy the officers of the agency
• the applicant had abused his rights under the FOI Act and the AAT Act.
Accordingly, the AAT:
• dismissed the applications on the grounds that they were frivolous or
vexatious
• directed that the applicant must not, without leave of the AAT, make any
subsequent application to the AAT in relation to FOI requests by him to
the agency.88
5.2 Other decisions
The decisions listed below may also provide guidance to agencies in deciding
whether to apply for a vexatious applicant declaration:
• Seal and Queensland Police Service89
• Cianfrano v Department of Commerce90
• Re Cunningham and Rural Adjustment and Finance Corporation91
• Duncan v Fayle92
87
At paragraph 19.
88
At paragraphs 23-25.
89
Unreported, Queensland Information Commissioner, 26 June 2007.
90
[2005] NSWADT 283.
91
[1996] WAICmr 29, 27 May 1996.
Office of the Information Commissioner (Queensland) 27
Guidelines
• Ford and Child Support Registrar93
• Miriani v Commissioner for Fair Trading94
6.0 Summary
Agencies considering making an application to the Information Commissioner
for a vexatious applicant declaration should consider the content of this
guideline before making an application.
To ensure the efficient processing of applications by the Information
Commissioner, agencies should include as much evidence as possible— see
section 4.3 of this guideline.
If the Information Commissioner is satisfied that an agency has established
the requirements in section 114(2) of the RTI Act or section 127(2) of the IP
Act, the Information Commissioner may declare that the person is a vexatious
applicant. A declaration will not be made without giving the person against
whom it is sought an opportunity to make oral or written submissions.
If a vexatious applicant declaration has been made against you, you can apply
to QCAT for review of that decision or seek a statutory order of review from
the Supreme Court of Queensland—see section 4.6 of this guideline.
Agencies who do not succeed in an application to have a person declared a
vexatious applicant may only apply to the Supreme Court for review.
Last updated 24 September 2010
Changes to legislation after the above date are not included in this document.
This guide is introductory only, and deals with issues in a general way. It is not
legal advice. Additional factors may be relevant in specific circumstances. For
detailed guidance, legal advice should be sought.
If you have any comments or suggestions on the content of this document,
please submit them to feedback@oic.qld.gov.au
92
[2002] FMCA 79, 9 May 2002.
93
[2007] AATA 1242, 23 April 2007.
94
[2005] NSWADT 99.
Right to Information and Privacy Guidelines 28