Key published decisions applying Section 77 FOI Act
Hearl and Mulgrave Shire Council (1994) 1 QAR 557
The applicant sought access to matter relating to a longstanding dispute with Mulgrave Shire Council (Council) in relation to a parcel of land the applicant claimed was his private property and not for public use. The application was framed as a series of questions relating to the dispute. The applicant also sought documents he knew did not exist.
Is the application, or part of the application, frivolous, vexatious, misconceived or lacking substance?
‘Vexatious’
The Information Commissioner adopted the ordinary meaning of the term ‘vexatious’ from the Shorter Oxford Dictionary: ‘of legal actions: instituted without sufficient grounds for the purpose of causing trouble or annoyance to the defendant’. [36]
The access application was predominantly framed as a series of questions seeking answers, rather than as a request for access to documents. The external review application asked the Information Commissioner to have the ‘questions more accurately answered’. [29]
The Information Commissioner was satisfied that the applicant did not have a right under the FOI Act to obtain answers to questions asked of government agencies or to have agencies extract answers to questions from documents in their possession. [30] However, the Information Commissioner considered that it is not improper for an agency to provide answers to questions asked of it, or extract answers to questions from documents in its possession, if it is prepared to do so in the interests of assisting a member of the public. [31]
In part, the application asked Council to answer questions regarding unsubstantiated allegations of collaboration between Council and ‘marijuana growers’ to injure the applicant’s interests and family. As those allegations could not be substantiated by the applicant, the Information Commissioner was satisfied the questions were vexatious and defamatory. [34]
Accordingly, the Information Commissioner decided not to review parts of Council’s decision which responded to aspects of the application which were vexatious, misconceived or lacking in substance.
The applicant sought access to documents relating to an email previously disclosed under the FOI Act. The University of Queensland (UQ) sought clarification from the applicant about what documents he sought to access. In his response the applicant provided a copy of the e-mail and posed a series of questions.
Is the application, or part of the application, frivolous, vexatious, misconceived or lacking substance?
‘Misconceived’
While the application was not specifically framed as a question, when read together with the applicant’s response it was apparent that the application was actually a question, albeit a rhetorical one. [22]
The application was found to be wrongly conceived in that it was not a genuine request for documents, but rather a means by which the applicant sought to voice his grievance with UQ. [27]
The Assistant Information Commissioner found: [28]
- the application was wrongly conceived
- there was no real basis on which the review could proceed.
Accordingly, the Assistant Commissioner decided not to deal with the application on the basis that the application was ‘misconceived’.
The applicant sought access to development documents held by Whitsunday Shire Council (Council). The applicant contended that Council had not disclosed a significant number of relevant documents. The applicant advised that they were instructing counsel in the matter but counsel had not been able to determine whether external review was required.
Is the application, or part of the application, frivolous, vexatious, misconceived or lacking substance?
‘Lacking substance’
The Assistant Commissioner was satisfied that the tests formulated in other jurisdictions provided useful guidance in interpreting the term ‘lacking in substance’ for the purpose section 77 of the FOI Act. She considered there must be regard to ‘the words of the statute in the context of the particular circumstance of the case’. [4]
The tests for determining whether matter is ‘lacking in substance’ have been formulated differently by the Federal Court and the Victorian Court of Appeal. The distinction between the two tests is subtle and different outcomes could be anticipated in only exceptional cases.12
In the Federal Court, Justice Drummond stated that:
a complainant must…have at the outset of the inquiry into his complaint sufficient material… to show that he has more than a remote possibility of a well-founded claim, if he is to defeat an application for the summary dismissal of the case that can be made at the start of the inquiry.13
In the Victorian Court of Appeal,14 Ormiston JA found that a complaint could not be dismissed unless ‘it is clear beyond doubt that the complaint is lacking in substance, that is, that the complainant has no arguable case which should be allowed to be resolved at a full hearing’.
Since the applicant’s counsel could not determine whether external review was possible, the Assistant Commissioner was satisfied that:
- the applicant was unable to identify any basis on which the Information Commissioner could investigate and review Council’s decision
- there was no basis on which an external review could be progressed
- the applicant had no arguable case and could not establish that there was more than a remote possibility of a well founded claim. Accordingly, the Assistant Commissioner decided not to deal with the application on the basis that the application was ‘lacking substance’.
The applicant sought access to documents relating to the Queensland gaming industry. The Treasury Department (Department) consulted with Tabcorp (Third Party) which objected to disclosure of the relevant matter. There was a difference of opinion between the Department and the Third Party regarding the date by which an external review application had to be made, which culminated in the Department releasing the documents to the applicant prior to the end of the review period.
Is the application, or part of the application, frivolous, vexatious, misconceived or lacking substance?
‘Lacking substance’
The Assistant Commissioner was satisfied that regard must be had to ‘the words of the statute in the context of the particular circumstances of the case’ in interpreting the terms ‘frivolous, vexatious, misconceived or lacking substance’.
Since the relevant documents had already been disclosed to the applicant the Assistant Commissioner was satisfied there was no basis on which the matter could be progressed and there was no meaningful remedy available to the Third Party under the FOI Act. [65]
The Assistant Commissioner decided not to further deal with the application because the application ‘lacked substance’.
The Assistant Commissioner decided not to deal with part of an application, under section 77 of the FOI Act because the application was ‘misconceived’ in that the applicant sought answers to questions rather than access to documents.
FMG and Department of Police (Unreported, Queensland Information Commissioner, 9 April 1999)
The applicants were the children of FMG. An earlier application by FMG resulted in a decision that the same matter was exempt from disclosure to him under section 44(1) of the FOI Act. In the later applications the Information Commissioner was not satisfied that the children wished to seek access to the matter, but rather FMG was again seeking access under the guise of his children. The Information Commissioner indicated he was ‘loathe to discount the privacy interests which a child would otherwise be entitled to have considered under section 44(1) of the FOI Act, without being convinced that the child is freely making an application for his/her own purposes or interests.’ The Information Commissioner decided not to deal with the application under section 77(1)(a) of the FOI Act on the grounds that it was vexatious, misconceived and lacking substance.
The applicant sought access to documents previously dealt with in finalised and or soon-to-be finalised external reviews. The Deputy Information Commissioner decided not to deal with parts of the application that had been dealt with in a previous decision, on the ground that those parts were vexatious under section 77(1) of the FOI Act. The fact that the applicant had made repeated applications for the same documents was equally vexatious and oppressive to the agencies involved.
The Deputy Information Commissioner noted that agencies do not have power to refuse to deal with a vexatious FOI access application, however an agency is entitled to request the Information Commissioner apply section 77(1) of the FOI Act if an agency’s actual or constructive refusal to process a vexatious part of an FOI access application becomes the subject of an application for external review.
Ubaldi and Department of Health (Unreported, Queensland Information Commissioner, 17 June 1999)
The trustee of a deceased estate sought access to the deceased’s medical records. Family of the deceased then requested an external review. The Information Commissioner was satisfied the applicant had no legal entitlement to seek review of the initial decision and accordingly refused to further deal with the application under section 77(1) of the FOI Act on the ground that it was misconceived or lacking in substance.
Mewburn and Kolan Shire Council (Unreported, Queensland Information Commissioner, 7 September 2006)
Kolan Shire Council refused access to documents that were administratively available under section 22(a) of the FOI Act. The Information Commissioner decided not to deal with the application as the application was lacking in substance.
The applicant sought access to matter relating to the death of a university employee. As there were no reasonable grounds to believe that additional documents were in the possession or under the control of the university and as some of the documents sought post-dated the access application, the Information Commissioner decided not to deal with the application on the ground that it was lacking in substance.
Price and Department of Police (Unreported, Queensland Information Commissioner, 29 June 2007)
In part, the applicant sought to initiate a ‘hearing’ of the issues previously addressed in earlier external reviews and decisions of the Information Commissioner. The Assistant Information Commissioner decided not to deal with that part of the application on the ground that it was vexatious.
In part, the applicant sought access to documents that were substantially the same as documents previously determined by the Assistant Information Commissioner as being contained in legislation or not existing in the form sought by the applicant. The Assistant Information Commissioner decided not to deal with that part of the application under section 77(1) of the FOI Act because the application was misconceived
12Cocks Macnish & Anor v Biundo (2004) WASCA 194. [up]
13Ebber and Another v Human Rights and Equal Opportunity Commission and Others (1995) 129 ALR 455. [up]
14State Electricity Commission of Victoria v Rabel [1998] 1 VR 102. [up]
Last updated: March 5, 2012
