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Tuesday, September 04, 2012

Queensland 2011-2012 cases of note

The Queensland Information Commissioner's annual report notes that at 30 June there were five appeals before QCAT by external review applicants in relation to decisions of the Information Commissioner. Under the RTI and IP acts an external review participant can appeal to the Queensland Civil and Administrative Tribunal (QCAT) against a decision of the Information Commissioner on a question of law. ( Around the country, it is basically the same system in WA; at the federal level, further merits review is available in the AAT where the applicant or the agency contends the decision of the Information Commissioner is wrong; there is no limitation in NSW on an applicant seeking further merits review in the ADT either bypassing the Information Commissioner or following an IC review-  this is the only jurisdiction where a decision by the Information Commissioner is recommendatory not determinative.)

No applications for judicial review were made to the Supreme Court during 2011–12 under the Judicial Review Act 1991 (Qld).

The report draws attention to three OIC decisions during the year. Two related decisions dealt with applications by the Seven Network for information about failed food safety audits and related compliance action for specified but unnamed food businesses: Food Business and Gold Coast City Council; Seven Network Operations (Third Party) (310352, 15 September 2011); and Seven Network Operations Limited and Safe Food Production Queensland; Food business (Third Party) (310277, 10 February 2012).

Both decisions found that releasing the information, would not, on balance, be
contrary to the public interest and identified the following public interest factors which
significantly favoured disclosure:
  • promoting open discussion of public affairs and enhancing government accountability—disclosure of the information was considered to contribute to agreater understanding of the way in which the local council/regulatory agency performs the significant regulatory functions conferred on it; and
  • contributing to safe, informed and competitive markets—competitive marketsrequire multiple participants and informed consumers and for this reason, there is a public interest in disclosing the information to consumers.
The third highlighted decision, Applicant-University of Queensland was the first resulting in a vexatious applicant declaration. Under s.114 of the RTI Act and s.127 of the IP Act, the Information Commissioner may declare that a person is a vexatious applicant if satisfied that the person has repeatedly engaged in access actions and the repeated engagement involves an abuse of process for an access action. A declaration can only be made if the respondent is given an opportunity to make written or oral submissions.

 The University applied for an individual to be declared a vexatious applicant. The Commissioner granted the declaration with the condition that the individual is prohibited from making any further access applications to the University concerning any document about him  brought into existence prior to the date of the declaration.  

The Commissioner considered that the making of 65 access applications to the University including ten in a 12 month period, constituted the applicant repeatedly engaged in access actions, and that the following features of the repeated engagement in access actions amounted to an abuse of process:
  • multiple and continuing applications over a long period of time, sometimes for the same documents,
  • unsubstantiated allegations against, and vilification of, the applicant’s staff abuse of access rights—using documents obtained under the IP Act to purportedly substantiate baseless allegations posted on the respondent’s website and to continue long standing and ongoing harassment of the applicant’s staff,
  • unreasonable interference with the applicant’s operations; and waste of public resources.

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