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Thursday, April 12, 2007

Difficult to get it right about difficult FOI applicants

A very alert and well informed reader has drawn my attention to the fact that South Australia already has a provision in its Freedom of Information Act that bears some similarity to grounds proposed in Western Australian legislation for dealing with difficult applicants (see our post "WA FOI Amendment and "difficult" applicants" 10 April).

The South Australian provision (Section 18(2a)) reads "An agency may refuse to deal with an application if, in the opinion of the agency, the application is part of a pattern of conduct that amounts to an abuse of the right of access or is made for a purpose other than to obtain access to information."

I don't know the extent to which this has been applied in practice but the 2004 -2005 Annual Report of the SA Ombudsman ( pages 13 and 14) includes the following observations:
"This is an interesting section because the starting point is that applicants do not have to provide any reason whatsoever for making an application under the Act. They do not have to justify their request in any way, because they are exercising a legally enforceable, statutory right to be given access (provided for under section 12), which is unrelated to the merits of the application.
However, by introducing the concepts of ‘unreasonableness’ and abuse of this right, together with ‘ulterior purpose’ (sometimes referred to by agencies as ‘vexatiousness’, although it is important to appreciate that this is not the word used) where an agency provides some evidence in support of section 18(1) or 18(2a), applicants would do well to justify their application(s). In legal terms, this is sometimes referred to as an applicant bearing the ’persuasive burden’. This proved a major difficulty for the applicants in the 12 matters.
Because the Act provides such a clear right to access, it is not something to be lightly taken away. Consequently it may not be easy to sustain an argument that an application is part of a pattern of conduct that amounts to an abuse of the right of access, and it is likely to be even more difficult to show an ulterior purpose (because this will probably be mere speculation on the agency’s part). That is, you may argue that because the applicant has not disclosed his or her purpose, that this purpose is ‘ulterior’. For example an applicant is unlikely to admit that he or she is trying to tie up the agency’s resources, even though it may feel like this from your end! Alternatively, while you may assert that the expressed purpose is not the real one, this may be difficult to prove".
The Ombudsman goes on to discuss a particular instance when a husband and wife made 12 FOI applications to an agency relating to the same subject. In that case, the fact that substantially the same documents had previously been provided justified a conclusion that dealing with the application would constitute an abuse of the right of access.

Thanks again to our alert reader for the leads.

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