Application of Section 77 FOI Act

Relevant considerations

1. Is the application, or part of the application, frivolous, vexatious, misconceived or lacking substance?

a) ‘Frivolous’

An application may be ‘frivolous’ or ‘vexatious’ where ‘the plaintiff's claim is so obviously untenable that it cannot possibly succeed.’2

b) ‘Vexatious’

An application may be ‘vexatious’ if it consists of allegations which cannot be substantiated by the applicant.3

The Information Commissioner adopted the ordinary meaning of the term ‘vexatious’ from the Shorter Oxford Dictionary as: ‘of legal actions: instituted without sufficient grounds for the purpose of causing trouble or annoyance to the defendant’. [36]

In considering whether an applicant was ‘vexatious’ under section 96A of the FOI Act,4 the Assistant Information Commissioner has found it relevant that:

  • the applications were for documents already requested, decided on or obtained
  • the applications were made for the purpose of, or had the effect of, harassing or intimidating
  • the applications were made for the purpose of, or had the effect of, unreasonably interfering with the operations of the agency
  • the applications were made for a wrongful or illegitimate purpose
  • the applicant did not comply with or disregarded the procedures and processes of the FOI Act
  • the applications were submitted without reasonable grounds
  • the applicant had made unsubstantiated or defamatory allegations
  • the applicant made the applications to cause delay or detriment to the agency
  • the applications were habitually and persistently instigated.

c) ‘Misconceived’

An application may be ‘misconceived’ where the applicant is not seeking access to documents but rather is posing a question5 or using the application as a means to voice a grievance.6

The Information Commissioner has emphasised that while applicants have a legally enforceable right to access documents under the FOI Act, this right does not include a right to obtain answers to questions asked of government agencies, or to have government agencies extract answers to questions from documents in their possession.7

d) ‘Lacking substance’

In interpreting the term ‘lacking in substance’ the Information Commissioner considered tests formulated in other jurisdictions and stated that regard must be had to ‘the words of the statute in the context of the particular circumstance of the case’.8

In deVere9 the Information Commissioner was satisfied that the application was ‘lacking in substance’ because:

  • there was no identifiable basis upon which a decision could be reviewed or investigated
  • there was no basis on which an external review could be progressed
  • the applicant did not establish that there was more than a remote possibility of a well founded claim.

2. Has the applicant failed to comply with a direction given by the Information Commissioner?

The Information Commissioner has express powers to issue directions about the procedure to be followed on review10 and the nondisclosure of certain matter.11

If the applicant has not complied with a direction, the Information Commissioner may decide not to deal, or continue to deal, with all or part of an application for review.

3. Has the applicant failed to cooperate in progressing the application, or part of the application, without reasonable excuse?

If the applicant has not cooperated in progressing the application or part of the application, without reasonable excuse, the Information Commissioner may decide not to deal, or continue to deal, with all or part of an application for review.

4. Is the applicant no longer contactable at the address provided and not advised the commissioner of a new address within a reasonable time?

If the applicant is no longer contactable at the address provided and has not advised the Information Commissioner of a new address within a reasonable time, the Information Commissioner may decide not to deal, or continue to deal, with all or part of an application for review.

2deVere Lawyers and Whitsunday Regional Council (Unreported, Queensland Information Commissioner, 19 March 2009) at page 4, citing Dixon J in Dey v Victorian Railways Commissioners (1949) 78 CLR 62. [up]
3Hearl and Mulgrave Shire Council (1994) 1 QAR 557 at paragraph 34. [up]
4 FOI Concepts ‘Vexatious Litigants.’ See also Scott and South Burnett Regional Council (Unreported, Queensland Information Commissioner, 9 April 2009) at paragraph 112 where section 96A of the FOI Act was discussed in the context of section 42(1)(ca) of the FOI Act. [up]
5DSR and University of Queensland (Unreported, Queensland Information Commissioner, 4 August 2009) at paragraph 22. [up]
6DSR and University of Queensland (Unreported, Queensland Information Commissioner, 4 August 2009) at paragraph 27. [up]
7Hearl and Mulgrave Shire Council (1994) 1 QAR 557 at paragraph 31. [up]
8deVere Lawyers and Whitsunday Regional Council (Unreported, Queensland Information Commissioner, 19 March 2009) at page 4. [up]
9deVere Lawyers and Whitsunday Regional Council (Unreported, Queensland Information Commissioner, 19 March 2009) at page 4. [up]
10 Section 72 of the FOI Act. [up]
11 Section 87 of the FOI Act. [up]

Last updated: March 5, 2012