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Monday, August 19, 2013

A vexed issue: vexatious declarations

Two recent decisions by Australian Information Commissioner Professor John McMillan involving the same applicant, and changes to the Freedom of Information Act proposed in the Hawke review report put the spotlight on the issue of 'vexatious applicants'.

In Australian Securities and Investments Commission and Sweeney [2013 ] AICmr 62 (9 August  2013) and Australian Prudential Regulation Authority and Sweeney [2013] AICmr 63 (9 August 2013) Professor McMillan declared Mr Sweeney a vexatious applicant under s 89K in both cases on the basis he had repeatedly engaged in access actions that unreasonably interfere with the operations of the agency, and involve an abuse of process (s 89L). Mr Sweeney may have a just cause, but he sure pushed the envelope.

The order in each case is the agency is not required to deal with any request for documents or for internal review by Mr Sweeney for a period of 12 months unless he first has applied in writing and has permission from the Information Commissioner to make the request.

The Hawke report (90-92) recommends no change to OAIC powers in this area but an amendment to permit an agency 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. The applicant could appeal against such a decision to the OAIC.

Dr Hawke points to precedents along these lines in the UK and Tasmania.

But leaving it open to an agency to find abuse of process, as it could under the current law on the basis that a request or requests unreasonably interfere with the operations of an agency, would not strike many on this side of the fence as a good idea, given examples of gaming the system that have come to light, most recently at DIAC.

As to the OAIC decisions:

In the ASIC case Mr Sweeney made 67 requests for access to documents and 11 requests for internal review prior to February 2012 and a further 35 access actions between February 2012 and June 2013.  The requests range broadly. "Some relate to his former employment and superannuation entitlements, ASIC’s handling of his complaints and FOI requests, and his earlier correspondence with ASIC. Other requests, and particularly the more recent requests, relate more generally to the conduct of official business by ASIC and contain direct or implicit suggestions of maladministration by ASIC or misconduct of senior ASIC officers. Matters covered by those requests include: financial records, statements and audit reports relating to a range of business entities; ASIC guidelines, memoranda, procedures and policy documents; correspondence between ASIC and other government bodies, including Treasury, the Superannuation Complaints Tribunal and the Commonwealth Ombudsman; documents regarding complaints received by ASIC about corporate entities; documents regarding the terms of employment of ASIC officers, their financial declarations and correspondence with government; and invoices for legal services.
  1. The volume of Mr Sweeney’s requests is high and places a considerable administrative burden on ASIC. That burden is higher than is warranted by reason of the idiosyncratic nature of some requests and the high number that is sometimes made in a short period.
  1. In reaching that finding I have taken into account that, viewed individually, Mr Sweeney’s requests are not generally offensive or objectionable in nature, and are more temperately expressed than some seen by the OAIC from other applicants. Nor is it contrary to the spirit of the FOI Act that an FOI request contains additional commentary or complaints by the requester. These sometimes provide context for a request, but in any case are compatible with the stated objects of the FOI Act, that include scrutiny, comment and review of government activity. However, the way a request is framed can confuse or complicate the processing of the request. When this is a recurrent feature of many requests it is a relevant factor in deciding if the pattern of a person’s requests interferes unreasonably with an agency’s operations.

In the APRA case Mr Sweeney made 33 access actions over a 12-month period, between 1 November 2010 (when s 89K was inserted by amendment into the FOI Act) and 22 November 2011. Those 33 actions comprise 29 requests made directly to APRA for access to documents under the FOI Act, 2 requests to other agencies that were transferred to APRA under s 16 of the FOI Act, and 2 applications for internal review of access refusal decisions. APRA has since notified the OAIC of a further 85 access actions by Mr Sweeney between 22 November 2011 and 21 February 2013, comprising 72 FOI requests and 13 applications for internal review.

The requests mostly relate to superannuation regulation. "A large number of the requests relate to a superannuation fund to which Mr Sweeney belonged, and APRA’s handling of his complaints and FOI requests. Other FOI requests related to different superannuation funds or corporate entities, and in particular the financial statements, auditor’s reports, trust deeds, reporting forms and correspondence relating to those entities; APRA guidelines, policies and procedures; documents related to matters covered in APRA correspondence and reports; correspondence with Ministers and other persons; documents that might contain information relating to alleged breaches of legislation and probity obligations; and conflict of interest declarations."
  1. I accept the uncontested submissions from APRA as to the number of access actions that Mr Sweeney has engaged in since November 2010, the hours that APRA has and will spend processing those access actions, the substantial allocation of administrative resources required by APRA to undertake that processing work, and the impact generally this is having on APRA operations.
  2. I am satisfied that the pattern of Mr Sweeney’s repeated access actions since November 2010 constitutes an abuse of process that has and continues to interfere unreasonably with APRA’s operations.
  3. It is significant in this case that Mr Sweeney has not only made a high number of FOI requests to APRA, but his requests constitute a high proportion of all requests received by APRA under the FOI Act during the same period. Caution is needed in drawing this comparison. There is no presumptive or ‘normal’ number of FOI requests that a particular agency can be expected to receive in a given period. Nor is there any recognised rule for estimating the amount of staff resources that a particular agency should dedicate to FOI processing.
  4. Nevertheless, when the number of requests from a single applicant is both high and a high proportion of all requests to an agency, this can be a relevant indicator of whether that applicant is engaging in an abuse of process that is interfering unreasonably with the agency’s operations. I find that to be so in this case. The administrative burden that Mr Sweeney’s requests are imposing on APRA is excessive and disproportionate to a reasonable exercise by Mr Sweeney of his right of access to documents under the FOI Act.
  5. I have also had regard to a similar pattern of access actions engaged in by Mr Sweeney in relation to ASIC, that I separately concluded in Australian Securities and Investments Commission and Sweeney to be an abuse of process within the meaning of that phrase in s 89K of the FOI Act. I commented in that case that ‘the inescapable impression ... is that many of [Sweeney’s] requests are aimed at re-agitating a grievance of long-standing that has been acknowledged and investigated by ASIC and other agencies’ (paragraph [44]). That grievance and associated campaign is not as overt in most of Mr Sweeney’s requests to APRA, but there are many similarities between his use of the FOI Act in relation to both ASIC and APRA.

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