Application of section 94(1)(a) RTI Act

Relevant considerations

1. Is the application 'frivolous, vexatious, misconceived or lacking in substance'?

a) 'Frivolous'

The Information Commissioner has not yet made any decisions concerning 'frivolous' applications under the RTI Act.

b) 'Vexatious'

The term 'vexatious' is not defined in the IP Act, RTI Act or the Acts Interpretation Act 1954 (Qld). In Underwood and Department of Communities and Minister for Community Services and Housing,¹ the RTI Commissioner considered that an external review application under the RTI Act which causes serious and unjustified trouble and harassment will ordinarily be vexatious however there must be regard to the words of the statute in the context of the particular circumstances of the case.² An application that is productive of serious and unjustified trouble and harassment is one which gives cause for apprehension without good cause or reason.³

In determining whether an application is vexatious, it is also appropriate to ensure the benefits of the applicant continuing to have the opportunity to seek review are clearly outweighed by considerations involving the proper use of OIC's resources and any unfairness to the agency or Minister.⁴

c) 'Misconceived'

An application may be 'misconceived' when the type of relief sought cannot be granted under the RTI Act.⁵

The term 'misconceived' in relation to a complaint, was described by Carr J in McGlade v Human Rights and Equal Opportunity Commission and Another⁶ as:

…facts which would undoubtedly deny the complainant relief, that the complaint is so hopeless that it should be summarily brought to an end.

d) 'Lacking in substance'

In deVere Lawyers and Whitsunday Regional Council,⁷ the Assistant Commissioner identified a number of cases in various jurisdictions that have considered the meaning of 'lacking in substance'. While these cases considered the term within the context of complaints made under anti-discrimination legislation, the tests formulated provide guidance in determining whether an application is 'lacking in substance' under the RTI Act, as both statutes are remedial in nature.⁸

In Ebber and Another v Human Rights and Equal Opportunity Commission and Others,⁹ Drummond J held that a complainant must show he has 'more than a remote possibility of a well-founded claim' to defeat an application for summary dismissal. Further, Ormiston JA in State Electricity Commission of Victoria v Rabel¹⁰ found that a complaint would be lacking in substance if the complainant has 'no arguable case'. In this case, Ormiston JA also cited Dey v Victorian Railways Commissioners¹¹ where Dixon J stated that a litigant's right to procedural fairness should only be deprived where the plaintiff's claim is 'so obviously untenable that it cannot possibly succeed'.

It was noted in deVere Lawyers and Whitsunday Regional Council¹² that it is important to always have regard to 'the words of the statute in the context of the particular circumstances of the case'.¹³

2. Should the discretion to not deal with the application be exercised?

In determining whether to exercise discretion to not deal with vexatious applications, the RTI Commissioner considered the relevant question is not whether OIC and the agency have the necessary resources to resolve the external reviews but whether it is a proper use of those resources to continue to deal with the external review applications.¹⁴

In Underwood¹⁵ the RTI Commissioner was satisfied the benefits of the applicant continuing to have the opportunity to seek review were clearly outweighed by considerations of fairness to the agency and the proper use of the agency and OIC's resources.