Key published decisions applying section 94(1)(a) RTI Act

Underwood and Department of Communities and Minister for Community Services and Housing (Unreported, Queensland Information Commissioner, 9 February 2012) (This decision is currently under appeal in the Queensland Civil and Administrative Tribunal)

The applicant sought access to information about her public housing tenancy. Four access applications were made to the Department of Communities (Department) and one of these applications was for documents located in the Office of the Minister for Community Services and Housing (Minister).¹ As a preliminary issue for determination, the RTI Commissioner considered whether or not to further deal with the external review applications on the basis that they were 'vexatious' under section 94(1)(a) of the RTI Act.

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

'Vexatious'

The term 'vexatious' is not defined in the IP Act, RTI Act or the Acts Interpretation Act 1954 (Qld). 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 [12] 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 [14]

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. [12]

The RTI Commissioner considered Justice Deane's comments in Oceanic Sun Line Special Shipping Co Inc v Fay⁴ and a recent decision of Queensland Civil and Administrative Tribunal (QCAT) provided a useful framework for determining when an application to the Information Commissioner is vexatious. [12] Relevantly, in Oceanic Sun, Justice Deane stated:⁵

If the plaintiff is not acting bona fide or in pursuit of a legitimate advantage in pursuing the proceedings in the legal system of this country, that will, of course, make it much easier for a continuation of the proceedings to be characterized as vexatious or oppressive, since there will be little if anything to put into the balance against the inconvenience which would be sustained by the defendant. On that approach, “oppressive” should, in this context, be understood as meaning seriously and unfairly burdensome, prejudicial or damaging while “vexatious” should be understood as meaning productive of serious and unjustified trouble and harassment. [emphasis added]

The RTI Commissioner considered a recent decision of QCAT⁶, where Senior Tribunal Member Endicott discussed section 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) which is also substantially similar to section 94(1)(a) of the RTI Act⁷, noting relevantly that:⁸

[w]hen bringing an early end to a case, QCAT should be satisfied that the factors in favour of a person having the opportunity to continue to seek review of an administrative decision have been clearly outweighed by factors involving the proper use of QCAT's resources and factors involving fairness to a respondent.

The applicant was in a protracted disputation with a particular unit of the Department in relation to various issues relating to her public housing tenancy. [15] During the external reviews the applicant made the following comments to an OIC staff member: [16]

Expect new external review applications very shortly – the Department's time is up and I won't grant extensions and I told them that.
…
Just letting you know, [more applications] are coming. I've made a number of other applications today, so there'll be more. I'm going to bury the bastards in paper.
[emphasis added]

Further, and significantly, the applicant indicated to the Department's RTI Unit that she was 'not trying to sink RTI, just [a specified] Housing Unit'. [17]

The applicant submitted that she did not make the comments to the OIC staff member and/or they were quoted out of context. [18] Further, she asserted that section 27 of the RTI Act 'demands applications are to be of a continuing and/or rolling nature' and the fact that the Department copies and distributes the documents to the relevant areas within the Department in managing her complaints and generates a significant amount of new documentation reflects appropriate complaint management practices. [23]

The RTI Commissioner considered the nature and effect of the applications together with the applicant's express intention to 'bury the bastards in paper' and was satisfied that: [27]

• the rolling access applications are for information which, in many instances, the applicant already has access to and the applicant is unwilling to compromise on matters which significantly impact the Respondent's resources, yet deliver little or no benefit to her;
• the applications cause significant annoyance and inconvenience to the Respondents by imposing an unreasonable administrative burden
• for the applicant, the applications are a means of achieving an end, that is causing inconvenience and annoyance and as a means of 'wearing down' officers and to gain advantage in her ongoing disputation with that unit; and
• the applicant is using her right of access under the RTI Act as a 'weapon' against the Respondents rather than for the legitimate purpose of accessing government information.

Having considered the circumstances of the case, the RTI Commissioner was satisfied that the trouble and harassment caused by the applications was serious and unjustified and the applications were 'vexatious'. [28]

Should the discretion to not deal with the applications be exercised in this case?

In determining whether to exercise discretion to not deal with the applications, the RTI Commissioner considered the relevant question is not whether OIC and the Department 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. [32]

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. [36]

The RTI Commissioner found the external review applications were 'vexatious' and decided not to further deal with them under section 94(1)(a) of the RTI Act.