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. Appendix One has more information about making a vexatious applicant declaration.

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.

Appendix 1

Applying to the Information Commissioner

Initial consideration Office of the Information Commissioner (Qld)

Before making an application for a vexatious applicant declaration, agencies should consider:

• whether it is possible the conduct will abate with the passage of time
• whether the conduct has already abated
• the passage of time since the person's last access action
• the period of time between the last access action and those prior.

In some cases, applications for vexatious applicant declarations are made in the context of an ongoing grievance between an agency and applicant.  This grievance is often long term and one which the agency has not been able to satisfactorily resolve.

The Information Commissioner has also made the following observations which agencies should take into account before making an application for a vexatious applicant declaration:

• the discretion to declare an applicant vexatious will be used cautiously and sparingly
• agencies should not apply to the Information Commissioner in lieu of exercising their own powers
• agencies should take corrective measures if their service delivery approach has entrenched a grievance or conflict with the applicant
• the Information Commissioner will be mindful of unrepresented applicants who have made their best endeavours to put forward their case
• any exercise of the discretion will be respectful of the lawful obligations of agencies in service delivery, and citizens' rights generally.

What to include in an application

An agency applying for a vexatious applicant declaration under the RTI Act or IP Act should provide as much evidence as possible to the Information Commissioner—this will help the Information Commissioner provide you with a quicker decision.

In an application, an agency should identify:

• grounds on which the application is based, supported by as much detail as possible
• evidence which the agency wishes the Commissioner to consider (including copies of the access actions relied upon)
• submissions on the evidence which explain the basis for the application
• any terms and conditions to which the agency considers the declaration should be made subject.

An agency should also ensure the following details relating to the person's access actions are included in the application:

• a summary of the access actions made
• number of documents/pages involved
• description of the terms of the applications
• the outcome of the access applications
• details of any subsequent reviews.

Processing an application

Following receipt of the application, the Information Commissioner will examine the agency's application and the evidence provided.  If necessary, the Information Commissioner may ask the agency to provide further evidence or information on particular issues.

The Information Commissioner will provide the respondent, ie the person whom the agency is seeking to have declared vexatious, with a copy of the agency's application and the evidence.  The Information Commissioner will ask the respondent to provide submissions in response to the agency's application.  The respondent's submissions will then be provided to the agency for its consideration and further response (where necessary).

The Information Commissioner may hold an oral hearing to give the participants an opportunity to make submissions and if necessary, make directions about how the application is to proceed.

The decision

After the participants have been given the opportunity to present their case and the Information Commissioner has considered all the evidence, the Information Commissioner will decide whether or not to declare the person a vexatious applicant.

If the Information Commissioner decides to make a vexatious applicant declaration, written notice of this decision will be issued to the agency and respondent.

The declaration will have effect subject to the terms and conditions stated in the declaration (if any).¹⁷ A declaration may include a condition that the vexatious applicant may not make an access application, internal review application or external review application unless the Information Commissioner has granted them permission to do so.

If the Information Commissioner is not satisfied that the agency has established the requirements in section 114(2) of the RTI Act or section 127(2) of the IP Act, the Information Commissioner cannot make a vexatious applicant declaration.¹⁸ In such a case, the Information Commissioner will inform the agency and respondent, in writing, of the decision not to make the declaration and provide reasons to the agency for dismissing the application.

Right of review

A person subject to a vexatious applicant declaration made by the Information Commissioner can apply to QCAT for review of the decision.  Only the person who is subject to the vexatious applicant declaration can apply to QCAT for review of the declaration.

Varying or revoking a declaration

The Information Commissioner may vary or revoke a vexatious applicant declaration¹⁹ on the:

• Information Commissioner's own initiative
• application of the person subject to the declaration.²⁰

A person subject to a declaration who is seeking to have it varied or revoked should make a written application to the Information Commissioner which sets out the reasons for the request.