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.