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| Cordover self portrait |
Lots of interest on Twitter (@mjec) last week about the Australian Electoral Commission and Michael Cordover's Freedom of Information application for the software used to count votes during Senate elections.
Particularly that two requests and an application for internal review of the decision on the first of those, and a request for Information Commissioner review by Cordover were enough to send the AEC off to the Australian Information Commissioner seeking a declaration that Cordover was a vexatious applicant.
The AEC's reasoning is puzzling, and the claim seems more like another in the all too frequent gaming the system stakes.
But it brings to light the fact that it isn't necessary to use the FOI act repeatedly to run the risk of being sent to the FOI sin bin.
While repeated use and abuse of process is one ground, the commissioner can but has never exercised the power, make a declaration where a particular access action involves, or
would involve, an abuse of the process, or would be manifestly unreasonable. None of this applies in Cordover's case, a genuine attempt to find out more about the way votes are counted in an agency that is central to the exercise of our democratic right.
The AEC's claim however is a telling example of what an agency could do if it had power itself to deal with an application it regarded as vexatious. Exactly what the Hawke report (90-92) sitting in an in-tray in the Attorney General's Department for 11 months now, recommends: 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.
Back to the Cordover matter- and by the way follow me on Twitter:@FOIguru
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:
