Vexatious applicant declarations

Overview

Under the Right to Information Act 2009 (Qld) (RTI Act) and Information Privacy Act 2009 (Qld) (IP Act) the Information Commissioner on its own initiative or on the application of an agency, may declare a person to be a vexatious applicant1.

This guideline is intended to help agencies and applicants understand on what basis an applicant would be declared vexatious2.

It is recognised that declaring an applicant vexatious limits that person’s right to access government information. The Information Commissioner will only make such a declaration if satisfied that there is a proper basis to do so.  The declaration can be made subject to terms and conditions.

Vexatious applicant declaration compared with decision that an application is vexatious

Under the RTI Act, the Information Commissioner may decide not to review an external review application if satisfied the application is vexatious3. This is not the same thing as declaring an applicant vexatious.

Vexatious applicant criteria

To be declared a vexatious applicant, the Information Commissioner must be satisfied a person has repeatedly engaged in access actions and one or more of the following applies:

  • the repeated engagement involves an abuse of process for an access action,
  • a particular access action in which the person engages involves, or would involve, an abuse of process for that access action,
  • a particular access action in which the person engages would be manifestly unreasonable.

Has the person repeatedly engaged in access actions?

An access action4 is an access application, internal review application, or an external review application.

There must be evidence that a person has repeatedly engaged in access5 actions before they can apply to have a person declared a vexatious applicant.  An agency cannot apply if that person has only made a single access application.

In deciding whether a person has repeatedly engaged in access actions, an agency may wish to consider:

  • whether the requests were the same or substantially the same as previous applications
  • whether the applicant had a reasonable basis for again seeking access.

In the University of Queensland and Respondent (27 February 2012) (UQ and R)6 the applicant had lodged a total of 65 access application with the agency, 10 in a one year period.

The 10 most recent applications received by the agency prior to its application to have the respondent declared vexatious were for access to documents:

  • previously accessed by the respondent
  • relating to the processing of the respondent’s access applications.

Do the access actions involve an abuse of process?

The RTI Act includes specific examples of applicant actions which are an abuse of process7:

  • harassing or intimidating an individual or an employee of an agency in relation to the access action
  • unreasonably interfering with the operations of an agency in relation to the access application
  • seeking to use the Act for the purpose of circumventing restrictions on access to a document or documents imposed by a court.

In UQ and R the Information Commissioner noted that other grounds for abuse of process established at common law:

  • duplicate proceedings already pending or determined and therefore incapable of serving a legitimate purpose
  • the making of unsubstantiated or defamatory allegations in applications
  • wastage of public resources and funds.

Other common law categories of abuse of process include:

  • lack of merits or ulterior motives of the person8
  • seeking a review for a collateral purpose9
  • non-compliance with or disregard of court procedures and processes10.

Harassment or intimidation

The meaning of the terms harassment and intimidation were considered by the Information Commissioner in UQ and R. The respondent in UQ and R maintained a website containing numerous unsubstantiated and defamatory allegations against staff of the applicant agency.  Many of these allegations were repeated in the respondent’s access application, external review applications, and in his submissions relating to the decision in UQ and R.

Consistent with the Information Commissioner’s decision in Sheridan and South Burnett Regional Council; Local Government Association of Queensland Inc; Dalby Regional Council and the Crime and Misconduct Commission (third party) (Sheridan)11, the Information Commissioner decided the postings on the respondent’s website amounted to acts of harassment in relation to the access actions of the respondent.  The Information Commissioner observed (at paragraph 17):

I have reviewed those [external review] applications and formed my own view that the [respondent’s] website and the respondent’s correspondence in relation to these reviews provide evidence that he seeks retribution against University staff who [the respondent] believes have ‘wronged’ him.  It is clear that his correspondence in his access actions is designed to harass and intimidate.  It is clear documents accessed by the respondent through RTI processes are posted onto the website to ‘substantiate’ unfounded allegations and to mount personal attacks on targeted individuals.

In Sheridan, the Information Commissioner found that:

  • acts which induce fear or force a person into some action by inducing fear or apprehension are acts of intimidation
  • acts which persistently trouble, disturb or torment a person are acts of harassment12.

In the same case, the Information Commissioner found that serious acts of harassment and intimidation had occurred based on the:

  • information provided by the former CEO that he had received a threatening phone call from an unknown caller with reference to the applicant and had been subject, in the presence of his children, to an act of physical violence
  • numerous postings that had been made on a website by people claiming to be the applicant's supporters
  • use of FOI applications by the applicant and people claiming to be her supporters.

Unreasonable interference with the operations of the agency

If an agency believes an access action would unreasonably interfere with its operations, it needs to show that the applicant has, purposefully or otherwise, substantially and unreasonably diverted the resources of the agency.  The agency may wish to consider:

  • the resources that would be used in identifying, locating or collating the documents in the filing system of the agency, making a copy, or edited copy of the documents, and examining the documents or consulting with an entity in relation to the application
  • the quantity of documents involved
  • the location of the documents and storage arrangements
  • any efforts by the agency to narrow the scope of the application
  • the operations of the agency that would be interfered with and how those operations would be interfered with (with reference to quantifiable data).

In UQ and R the applicant agency contended that the respondent’s conduct in applying for all documents in the applicant agency’s possession concerning the respondent constituted an unreasonable interference in the applicant’s operations. The applicant agency held 99 files relating to the respondent, of which it had processed 23.

Previous applications by the respondent to the applicant agency included:

  • access to 16 of the 99 files for documents that “contains any information that relates to me, is relevant to me or is in any way personal to me”, excluding information already released
  • access to 26 of the 99 files on the same basis as the above application.

In both cases the applicant agency refused to deal with these applications because they would substantially and unreasonably divert its resources and this view was upheld by the Right to Information Commissioner.

In UQ and R the respondent had also applied for information previously sought.  In response to those applications the respondent had either been given access to the documents or was able to exercise review rights. The Information Commissioner was of the view that “requiring the applicant agency to process further applications would be a waste of public resources and funds”.

Using the Act to circumvent restrictions on access to a document imposed by a court

Where a court has restricted access to a document or documents, and an applicant attempts to access those documents under the RTI Act for the purpose of circumventing those restrictions, the access action may amount to an abuse of process.

The purpose behind this provision is to prevent interference in the proper administration of justice.  Accordingly, Court ordered restrictions on access to documents, such as suppression orders, must be observed and not rendered meaningless by disclosure under the RTI Act.

Where an agency claims that an applicant's access action aims to utilise the RTI Act to circumvent a court ordered restriction on access to a document, the agency should specifically identify and provide evidence of the restriction imposed by the court and indicate how that restriction applies to the access action.

Is the access action manifestly unreasonable?

The Information Commissioner can make a vexatious applicant declaration if satisfied that a particular access action in which the person engages would be manifestly unreasonable13.

The term manifestly unreasonable is not defined in the RTI Act. The Macquarie dictionary defines these words as:

  • manifestly: readily perceived by the eye or the understanding; evident; obvious; apparent; plain
  • unreasonable: not guided by reason or good sense; not based on or in accordance with reason or sound judgement; exceeding the bounds of reason; immoderate; exorbitant.

The Information Commissioner has not previously considered this part of the RTI Act.  Guidance may be found in decisions of the UK Information Commissioner, who has noted that manifestly unreasonable access actions include:

  • A pattern of requesting behaviour that could be considered to be manifestly unreasonable by a dispassionate person…which may well arise in connection with a grievance or complaint against the agency14.
  • A request which a reasonable person would describe as obsessive or manifestly unreasonable15.

The UK Information Commissioner has also noted that manifestly unreasonable access actions will be exceptional and said that public authorities must not be judgmental without good cause: apparently tedious requests relating to a genuine concern must not be dismissed as manifestly unreasonable16.

  • 1 Section 114(1) of the RTI Act and section 127(1) of the IP Act. References to the RTI Act in this guideline should be read to include the equivalent section in the IP Act and include amendment actions as well as access actions.
  • 2 For information on how to apply to have someone declared a vexatious applicant, please see Appendix 1 (PDF, 105.22 KB).
  • 3 Section 94(1)(a) of the RTI Act and section 107(1)(a) of the IP Act.
  • 4 Section 114(8) of the RTI Act for access actions and Section 127(8) of the IP Act for access actions and amendment actions.
  • 5 Or amendment actions for the IP Act.
  • 6 UQ and R concerned an application for a vexatious applicant declaration under Section 127 the IP Act, which is in the same terms as Section 114 of the RTI Act.
  • 7 Section 114(8) of the RTI Act; section 127(8) of the IP Act. This list of examples is not intended to be exhaustive.
  • 8 Williams v Australian Electoral Commission and the Greens (1995) 38 ALD 366.
  • 9 Re Cameron.
  • 10 Re Cameron.
  • 11 In relation to section 42(1)(ca) of the repealed FOI Act.
  • 12 At paragraph 200.
  • 13 Provided the Information Commissioner is also satisfied the person has repeatedly engaged in access actions.
  • 14 Transport for London UK Information Commissioner, FS50090632, 10 April 2007.
  • 15 London Metropolitan University UK Information Commissioner, FS50085398, 8 August 2006.
  • 16 ibid

Current as at: June 5, 2017