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Wednesday, January 23, 2013

Abuse of process sees FOI applicant declared vexatious

Australian Information Commissioner Professor John McMillan has rushed through a decision, the first of its kind, declaring a Freedom of Information applicant vexatious under powers conferred by Section 89K(1) of the FOI Act. 

In the decision dated 17 January Professor McMillan found that "W" in making applications to the Department of Defence, had repeatedly engaged in access actions that involved an abuse of process by harassing departmental staff, and "not cooperating reasonably with the Department in making access requests that do not contain offensive language and that endeavour to comply with the requirements of the FOI Act."

The Department of Defence lodged the application with the OAIC on 7 December, so this zipped through to decision smartly compared to review requests. The just released OAIC quarterly statistics to December reveal the oldest IC review application was 707 days and the average time to completion was 207 days. But I digress...

"W" made 13 FOI applications to Defence over 17 months, and some others subsequently, hardly at the highest end of the use spectrum, but sufficient to constitute 'repeated access actions', the first criterion.The requests relate mostly to "W's" earlier service as a member of the Australian Defence Force in the late 1960s and unresolved grievances. However the form of the applications, other conduct and the language and tone in communicating with staff [some examples at 30] provided strong grounds for the finding that the requirements of s 89L were satisfied: 
32. After considering the content, tone and language of Mr W's correspondence, I am, on balance, satisfied that his conduct constitutes harassment, and an abuse of process under the FOI Act. Both his written correspondence and oral communication with officers of the Department was insulting and offensive, and could understandably be distressing to those officers. Unnecessarily and without satisfactory explanation he has directly impugned the personal and professional integrity of officers in the FOI section of the Department. This was calculated behaviour that bore no rational connection with the exercise of access rights under the FOI Act. The making of allegations that are defamatory, unsubstantiated and inflammatory is more likely to impede the efficient processing of access requests, as frequently occurred in relation to Mr W.
"W" has a right to AAT review.

There have been two vexatious declarations under the Queensland Right to Information Act. In Underwood, applications before the commissioner were found to be vexatious. In Applicant, a person who made 65 access applications to the University, 10 in a twelve month period was declared a vexatious applicant, the relevant conduct involved summarised as:
  • comprising multiple and continuing applications over a long period of time, sometimes for the same documents
  • comprising unsubstantiated allegations against, and vilification of, the applicant’s staff
  • an 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 the long standing and ongoing harassment of the applicant’s staff
  • an unreasonable interference with the applicant’s operations; and
  • amounting to a waste of public resources.[23].
This Victorian case involving vexatious litigant issues that went beyond FOI cropped up a few years ago.

(Addition: a South Australian reader draws attention to s18(2a) of the SA FOI act, in effect since July 2002, which provides that 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. One District Court case upholding a decision to rely on the provision is Gabrielson v Nurses Board of SA [2008] SADC 51 (unreported)-available as a pdf from The Box, involving 45 applications in one year, all concerning a grievance matter. No other information available about use of this provision by agencies generally.)

The Australian Information Commissioner has a similar discretion to that exercised by the Queensland commissioner in Underwood, not to undertake or continue a review on the grounds that it is frivolous, vexatious, misconceived, lacking in substance or not made in good faith (s 54W(a)). In its submission to the Hawke review the OAIC said the discretion has been applied in 42 of the 253 IC reviews finalised in 2011–12. No details of the precise grounds relied upon in these instances.

Of course one person's vexatious, or what often appears to be obsessive interest in matters concerning a particular grievance or grievances, is another's pursuit of information for high minded reasons or principle. Public servants have to deal with all types but boundaries need to be in place for applicants who go over and over and over the same ground, and are abusive, harassing, intimidating, or threatening to boot.  

Getting the balance right, and developing an appropriate way of dealing with such matters is complex. Attempting to overreach on this was one reason Victorian FOI reform came unstuck in 2008.

The OAIC thinks there is room for improvement at the Commonwealth level.

In their Hawke review submission the commissioners recommend (No 26) adoption of the Tasmanian approach (Right to Information Act s 20): that the act be amended so as to "permit agencies to decline to handle a repeat or vexatious request or requests that are an abuse of process, without impacting on the applicant's ability to make other requests or remake the request that was not accepted (see paragraphs 209–215)." The decision would be subject to IC review. 

Plenty of room for lively debate on this one. Any agency powers to declare an application  vexatious should be tightly defined. Some information about Tasmanian experience would be useful. As would some reflection on what has happened in the UK where the law contains a similar provision and both an agency and the Information Commissioner on occasion get it wrong.



  1. OIC Qld is not accountable to anyone - i.e. they are beyond 'misconduct' - however actually breach a fiduciary trust as officers of a public trust (Position in Public office is a position of Public Trust)

    The is a perception OIC Decision's will not be appealed either due to lack of money or time giving the decision makers the ability to make any decision they like without consequences.

    What happens in the reverse situation where the OIC abuses the process, is complicit with the agencies in a retaliatory decision?

    How can repeat applications whilst identical in wording be seen as seeking the same information, when each application specifically states 'excepting the information provided in any previous application'; the act specifically directs the application is 'to the date of the application' requiring the applications to be of a rolling nature?

    How can an application (inanimate object) be frivolous, vexatious, misconceived or lacking in substance?

    How can 4 applications be combined as 1 decision?

    How can access applications being deemed 'no decisions', not accepted for external review then be a vexatious application?

    How can an application (inanimate object) have the ability to have willful and malicious criminal intent?

    What is considered a reasonable time frame - one application took 13 months from date of lodging to become a vexatious application 3 others 10 1/2 months, one of these applications actually another agency (The Minister)?

    OIC produced an internal research paper supposedly to ascertain the effect of multiple applications on OIC's efficiency - the research paper went to great lengths defining what constitutes a vexatious applicant not a vexatious application.

    OIC Qld do not consider the public interest in naming the person in "UNDERWOOD" whereas the person is named as "W" in the Department of Defence decision.

    OIC Qld also use a decision 'on appeal' as authority for annotated legislation.

  2. The Underwood decision (link below) is before the Queensland Civil and Administrative Tribunal, so look forward to further insights on "vexatious applications" and the exercise of powers

  3. What is the remedy afforded to someone termed Vexatious?

    One remedy is that the ‘alleged’ vexatious litigant has the right to sue for defamation, especially since in the case of ‘Underwood’ the applicant has been publicly identified. Further searching would reveal the identity of the natural person in question. However, the defendant being the Government does not have jurisdiction to hear cases against itself. One Judge sitting alone, or even the High Court, do not have jurisdiction to hear cases against their employer.

    Since only an unobstructed randomly chosen jury has the power to annual bad law, and to punish the public servants that aid and abet crimes or abuse their power; symbolises a true democracy. Since the modem operandi of the government is to keep everything secret and to deny juries or sell justice quoting one applicant for a jury $30,000, one can only sumise we live in a fictional world of propaganda and lollypops overshadowed by dictatorial fascism.

    In ‘Applicant’ where the FOI Dept gave reasons, should ‘Applicant’ go to court and risk ‘Contempt’? At least then the Judge must hear the case for the contempt. For instance:

    * maybe the continuing application is for the same document or other documents to do with the same case that FOI refuse to release?

    * if the document would confirm that ‘Applicant’ was telling the truth, and the inability for ‘Applicant’ to get remedy which causes financial and emotional hardship, the so-called public servants (corporate staff) are knowingly aiding and abetting a crime. Let the jury decide who’s telling the truth. The public servants acting for the ‘government entity’ should get their affairs in order because the people hold them in vicarious liability.

    * the defendants (the public servants who act for government) do not have jurisdiction to dismiss an allegation against themselves. Until a jury decides whether or not a case is unsubstantiated, ‘Applicant’ has a common law right to a jury trial, and until that right is satisfied ‘Applicant’ has a case to be answered, both in a civil case for damages, and also in a criminal case against public servants who aid and abet to subvert the people’s right to justice and jury trial as guaranteed under the Constitution.

    * it is the FOI who are obstructing justice and interfering in ‘Applicant’s’ rights;

    * ‘Applicant’ is a natural person, a legal person, and is classified as one of many, therefore he is part of the people of the Commonwealth, and he is a member of the public, therefore these are his resources. The public servants who work for FOI are merely the conduit. It is not logical to pronounce that the public waste their own resources. If anyone is wasting the public resources it is public servants who aid and abet crime or abuse their position of power by denying the public its inalienable and inherent right to prove or substantiate any and all claims.

    Finally in a true democracy and just civilisation, nothing can be allowed to be kept secret by the government, including anything to do with defence. In a true democracy the people decide whether or not the country goes to war, or whether we sell our assets, privatise our national bank or hand over control of our currency to private interests. Decisions of this nature are sedition and/or treason, especially when we consider the long line of prime ministers such as Whitlam, Hawke, Keating, Rudd and Gillard who have demonstrated their communist Fabian Socialist agenda in our legislation and statutes.

    Fiat justitia ruat caelum - "Let justice be done though the heavens fall."

  4. Far too gloomy and overblown. We'll leave it there thanks.

  5. There is no remedy provided in either RTI Act 2009 (Qld) or QCAT Act. It seems the only remedy available will be for breach of Fiduciary Trust. The OIC is not accountable under any circumstances.

    Neither RTI (Qld) nor QCAT Acts provide for an injunction for - either 'temporary and/or moving to permanent removal' of decision from the website.

    RTI states 'must publish' however does provide for taking into account 'in the public interest'.

    The only remedy provided in the RTI Act is an appeal on points of law and if this is successful then QCAT becomes the notional decision maker for a rehearing/review of the decision.

    The other declaration was similar to the Department of Defense wherein the agency sought such a declarations as being a 'vexatious applicant'

    It will be interesting to see if the Department of Defense declaration will be appealed