LODGE,Justin
From:
47E(d)
Sent:
Tuesday, 1 February 2022 1:24 PM
To:
FOIDR
Subject:
Application - Vexatious Applicant s89k
Attachments:
2022_02_01 Ltr and Application to the Information Commissioner.pdf; Application for Vexatious
Applicant Declaration - 1 February 2022.DOC
CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognise
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Good Afternoon
I attach an application by the 47E(d)
under section 89k of the
Freedom of Information Act
1982 (Cth).
As the files supporting this application are large, they can cannot be included in this email however, they can be
downloaded from link47E(d)
The password is 47E(d)
If you have any problems with the link, please let me know.
Kind Regards,
47E(d)
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1
47E(d)
1 February 2022
The Australian Information Commissioner
Office of the Australian Information Commissioner
GPO Box 5218
SYDNEY NSW 2001
By
email: xxxxx@xxxx.xxx.xx
Dear Information Commissioner
Section 89K Freedom of Information Act 1982 application for a vexatious applicant declaration
against 47E(d)
We
enclose a copy of an application for a vexatious applicant declaration dated 21 January 2022.
The attachments referred to in the application are available to access and download from the link
embedded within the covering email.
Please advise if you have any difficulties accessing the attachments.
Given the potential for a large number of additional access actions to be taken by the Applicant at
any time, 47E(d)
respectfully requests that your office give urgent consideration to this
application.
Yours sincerely
47E(d)
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47E(d)
[1
February
2022]
SECTION 89K FREEDOM OF INFORMATION ACT 1982 (CTH) APPLICATION FOR
A VEXATIOUS APPLICANT DECLARATION
To: The Australian Information Commissioner
1. I, 47E(d)
47E(d)
47E(d)
2. 47E(d) is an “agency” subject to the
Freedom of Information Act 1982 (Cth) (
FOI Act). I
am writing, on behalf of 47E(d) to apply for a vexatious applicant declaration pursuant
to section 89K of the FOI Act in relation to the 47E(d)
(
the Applicant).
Background
3. Between 1 September 2021 and 4 January 2022, 47E(d) has received 54 FOI requests
from the Applicant (
the FOI requests) comprised of the following:
a. 44 requests received by 47E(d) from the Applicant between 1 September
2021 and 1 October 2021.
b. 3 requests received by 47E(d) from the Applicant on 4 October 2021.
c. 1 request received by 47E(d) from the Applicant on 19 October 2021.
d. 2 requests received by 47E(d) from the applicant on 29 October 2021. .
e. 2 requests received by 47E(d) from the Applicant on 6 November 2021.
f. 1 request received by 47E(d) from the Applicant on 8 November 2021.
g. 1 request received by 47E(d) from the Applicant on 4 January 2022.
4. This application refers to the status of each of the FOI requests as at 17 January 2022.
As 47E(d) continues to receive and send correspondence in relation to many of the FOI
requests, due to resourcing constraints, it was not possible to continuously update this
application and supporting documentation to the date of signing. However, 47E(d) can
provide further updates on the status of each FOI request, and provide further
documentation, upon request.
5. The FOI requests relate to a range of different subject matters.
6. 47E(d) has been attempting to process each of the FOI requests within the applicable
processing periods. As at 17 January 2022, 47E(d) has decided 29 of the FOI requests.1
1 That is, request numbers 47E(d)
1
One of those decided requests was the subject of an internal review which has now
been completed. As at 17 January 2022, of the remaining requests:
s47E(d)
47E(d)
7.
Enclosed as
Attachment 1 to this letter is a schedule of the FOI requests.
8.
Enclosed as
Attachment 2 to this letter is a PDF bundle of all relevant correspondence
between 47E(d) and the Applicant in relation to the FOI requests. An index appears at
the start of the PDF. The PDF includes bookmarks which can be used to navigate
between documents. Some of the emails provided in Attachment 2 contain redactions
of forwarding or related correspondence not relied upon as supporting material.
9. Attachment 1 describes the status of each request, including what action 47E(d) has
taken, and is currently taking, to process each request as at the date of this letter.
10. 47E(d) notes that nearly all of the requests have been made by the Applicant from the
email addresss 22
. However, 2 of the requests have been
made by the Applicant from the email addresss 22
.
11. On 14 October 2021, 47E(d) wrote to the Applicant advising that it was considering
making an application for a vexatious applicant declaration and invited the Applicant to
47E(d)
2 Request number 47E(d) .
3 Request number 47E(d)
4 Request number 47E(d) .
5 Request numbers 47E(d)
6 Request numbers 47E(d)
2
consult with a view to removing the need for a declaration.7 On 15 October 2021, the
Applicant provided a response to 47E(d)
letter.8
12. Following 47E(d)
letter of 14 October 2021, it received the following new FOI
requests:
a. 1 request received by 47E(d) from the Applicant on 19 October 2021.
b. 2 requests received by 47E(d) from the Applicant on 29 October 2021. .
c. 2 requests received by 47E(d) from the Applicant on 6 November 2021.
d. 1 request received by 47E(d) from the Applicant on 8 November 2021.
13. In this respect, the Applicant has re-lodged some requests after they were taken to be
withdrawn under section 24AB following the Applicant failing to respond to 47E(d)
consultation request letters.9
14. It has been necessary for 47E(d) to send consultation request letters to the Applicant
with respect to many of its purported requests on the basis of the “practical refusal”
reason contained in section 24AA. This is variously because many of the FOI requests do
not provide such information concerning the document(s) sought as is reasonably
necessary to enable the responsible officer of 47E(d) to identify the document(s). The
Applicant has also sent correspondence to 47E(d) requesting extensions of time to
respond to consultation request letters for requests that have been taken to have been
withdrawn. 47E(d) has advised the Applicant that it is unable to extend the period for
consultation after a request has been taken to have been withdrawn.10
15. In addition, to exacerbate the difficulties 47E(d) is experiencing in processing the very
large number of requests within the applicable statutory processing period, the
Applicant has from time to time not responded to extension request letters. It has been
necessary for 47E(d) to seek these extensions, sometimes with minimal notice to the
Applicant because of the large number of requests 47E(d) has been processing at any
one time. With respect to the non-response to extension request letters issued on 26
October 2021, the result was that 11 requests were to result in deemed refusal
decisions.11 With respect to other requests for extensions of time made by 47E(d) to
7 See document number 1 (pages 1 to 3) of Attachment 2.
8 See document number 2 (pages 4 to 22) of Attachment 2.
9 See for example, following request number 47E(d)
being taken to be withdrawn the Applicant re-lodged
the request (see request number 47E(d)
); following request number 47E(d)
being taken to be withdrawn
the Applicant re-lodged the request (see request number 47E(d)
.
10 See document number 43 (pages 11 to 13) of Attachment 2 (in relation to request numbers 47E(d)
).
11 See request numbers 47E(d)
.
3
the Applicant, the Applicant has, at times, requested that 47E(d) provide the details of
the original request in order to respond to the extension request (including, at times,
not responding to the request at all).12 The 47E(d) has taken steps to make an
application to your office with respect to all of the requests under section 15AC. Your
office approved those requests and with one exception,13 47E(d) was able to decide all
of the requests within the extended period.14 However, the 47E(d) is concerned about
the impact of this conduct given that the Applicant was aware of the difficulties being
experienced by 47E(d) in processing the substantial number of requests it has made
and the consequences of not granting an extension.
16. On 11 November 2021, 47E(d) issued the Applicant with a letter addressing a range of
matters relating to the FOI requests.15 The letter addressed the Applicant’s
29 October 2021 and 3 November 2021 requests for a 14 day extension of time to
respond to certain consultation request letters. The 11 November 2021 letter advised
the Applicant that 47E(d) is unable to extend the consultation period for requests which
have been taken to have been withdrawn by operation of the FOI Act. The letter also
reiterated that the access actions the Applicant had continued to take had only served
to increase the burden on 47E(d)
limited resources.
17. Despite 47E(d)
11 November 2021 letter, the Applicant sent a further email to 47E(d)
on 1 December 2021 and letter by email to 47E(d) on 2 December 2021, reiterating
many of the issues that 47E(d) had previously addressed.16
18. In the circumstances, 47E(d) considers that there is a need for a vexatious applicant
declaration.
Grounds on which 47E(d)
seeks a declaration
19. 47E(d) seeks a vexatious applicant declaration on the grounds that, pursuant to section
89L(1)(a), the Applicant has repeatedly engaged in access actions and the repeated
engagement involves an abuse of the process for the access actions.
20. 47E(d) considers that, pursuant to section 89L(2)(a), the Applicant has repeatedly
engaged in an access action as it has made multiple requests for access to document(s)
under the FOI Act. As indicated above, the Applicant has made 54 requests under the
FOI Act in the period of 1 September 2021 to 4 January 2022.
12 See for example, request number 47E(d) .
13 See request number 47E(d) .
14 See document numbers 170 (request no. 47E(d) ) , 193 (request no. 47E(d) ), 199 (request no.
47E(d)
, 204 (request no. 47E(d)
, 230 (request no. 47E(d)
), 235 (request no. 47E(d)
), 239 (request
no. 47E(d)
, 244 (request no. 47E(d)
, 249 (request no. 47E(d)
), 254 (request no. 47E(d)
) and 269
(request no. 47E(d)
of Attachment 2.
15 See document number 5 (pages 29 to 43) of Attachment 2.
16 See documents numbered 6 and 7 (pages 44 to 48) of Attachment 2.
4
21. 47E(d) considers that the repeated engagement in access actions involves an abuse of
the process for the access actions as, pursuant to section 89L(4)(b), the actions of the
Applicant is unreasonably interfering with the operations of 47E(d)
22. The reason why this ground is, in the 47E(d)
submission, engaged by the Applicant’s
access actions since 1 September 2021, are set out below.
Comparison of number of FOI requests received by 47E(d)
23. 47E(d) has received the following number of FOI requests in the four financial years
prior to the current period:
01.07.2017 – 30.06.2018 – 2 FOI requests.
01.07.2018 – 30.06.2019 – 48 FOI requests.
01.07.2019 – 30.06.2020 – 24 FOI requests.
01.07.2020 – 30.06.2021 – 21 FOI requests.
24. The following is the largest number of requests received by 47E(d) from any one
applicant in each of those four previous financial years:
01.07.2017 – 30.06.2018 – 2 FOI requests received from one applicant.
01.07.2018 – 30.06.2019 – 36 FOI requests received from one applicant.
01.07.2019 – 30.06.2020 – 15 FOI requests received from one applicant. The
applicant that lodged the 15 FOI requests in that period was the 47E(d)
(i.e. the Applicant).
01.07.2020 – 30.06.2021 – 15 FOI requests received from one applicant. The
applicant that lodged the 15 FOI requests in that period was the 47E(d)
(i.e. the Applicant).
25. In addition to the 54 requests received by 47E(d) from the Applicant since
1 September 2021, 47E(d) has also received 14 FOI requests from two other applicants.
These additional 14 requests made by other applicants represent a significant increase
compared with the number of FOI requests 47E(d) normally receives in an equivalent
period.
26. 47E(d) has ordinarily been able to process the regular volume of FOI requests it receives
without significant interference with, or an unreasonable burden placed on, 47E(d)
resources and operations. As demonstrated by the previous financial years, 47E(d) has
been able to process a reasonable number of FOI requests made by the Applicant.
27. The 54 FOI requests received from the Applicant between 1 September 2021 and
4 January 2022 represents a significant increase in the ordinary number of FOI requests
received by 47E(d) in any given period. The number of requests made by the Applicant
5
is also significantly more than the ordinary number of FOI requests 47E(d) receives from
any one applicant in a given financial year.
Time spent processing access actions of the applicant and interference with 47E(d)
resources
28. 47E(d) is a 47E(d)
47E(d) has only 47E(d)
available and trained to process and deal with
FOI requests received by 47E(d) 47E(d)
47E(d)
The
FOI officer also enlists the assistance of 47E(d)
47E(d)
47E(d)
Due to 47E(d)
47E(d)
it has been unable to
reasonably allocate additional resources to process the FOI requests. The volume and
frequency of the Applicant’s repeated engagement in access actions has had a
significant and acute impact on 47E(d)
29. 47E(d) estimates that between 1 September 2021 and 17 January 2022 alone, 47E(d)
has spent a minimum of approximately 500 hours processing the FOI requests.
Further, 47E(d) estimates that between 1 September 2021 and 17 January 2022 alone,
47E(d)
has spent a minimum of approximately 35 hours assisting the47E
with searches. 47E(d) also estimates that in that same period alone, the 47E(d)
(d)
has spent a minimum of approximately 35 hours assisting with searches.
47E(d) estimates that 47E(d)
have spent approximately 15 hours assisting
with the FOI requests. Further, 47E(d) estimates that the Finance Department has
spent approximately 15 hours assisting with the FOI requests. In addition, due to the
volume of the FOI requests and 47E(d)
limited resources, it has been necessary to
engage external solicitors to assist with providing advice in relation to the processing of
the FOI requests, at a significant expense to 47E(d)
30. In addition to the 47E(d)
47E(d)
47E(d)
47E(d)
6
47E(d)
47E(d)
31. The time spent processing the FOI requests has substantially, and in my opinion,
unreasonably, interfered with 47E(d)
resources and operations. The high number of
access actions had led to a substantial and prolonged processing burden on 47E(d)
considers that the Applicant’s repeated access actions has led to a burden that is
excessive and disproportionate to a reasonable exercise by the Applicant of the right to
engage in access actions.
32. As a direct result of the time required to be spent processing the FOI requests:
A substantial workload impact has arisen.
Service deliverables have been delayed including:
47E(d)
47E(d)
47E(d)
47E(d)
7
47E(d)
47E(d)
33. In addition to the volume of the FOI requests, the substantial burden placed on 47E(d)
resources and operations has also arisen as a result of:
Many of the FOI requests being poorly framed and difficult to discern (including
because requests often do not include a date range), resulting in additional time
being spent consulting with the Applicant.
Many of the FOI requests being requests for documents that do not exist / which
may amount to requests for information to be prepared in response to a request.17
A request for documents in identical terms to a previous request decided by
47E(d)
18
34. 47E(d) has sought the cooperation of the Applicant in the processing of the FOI
requests. Despite 47E(d)
efforts to engage with the Applicant to process the FOI
requests, 47E(d) notes that by letter dated 2 December 2021, the Applicant advised
that s 22
35. 47E(d) has used other provisions of the FOI Act to lessen the impact of the FOI requests
on its operations. For example, 47E(d) has sought extensions of time to process
applications.20
36. 47E(d) considers that the access actions engaged in by the Applicant 47E(d)
47E(d)
Further,
47E(d) submits that some of the Applicant’s correspondence in respect of the FOI
requests has been used by the Applicant 47E(d)
47E(d)
s47E(d)
47E(d)
47E(d)
47E(d)
47E(d)
47E(d)
47E(d)
47E(d)
(pages 44 to 48) of Attachment 2.
17 See for example, request numbers, 47E(d)
18 See for example, request numbers 47E(d)
19 See document number 7 of Attachment 2.
20 See for example, request number 47E(d)
(document numbers 93, 94 and 95) of Attachment 2.
8
37. 47E(d) is also aware that the Applicant has publicly published details about making FOI
requests to 47E(d) in an s 22
Enclosed as
Attachment 4 is a copy of s 22s 47F,
s 22
General considerations
38. 47E(d) considers that there is a clear and convincing need for a declaration. There are a
number of general considerations applying to this application.
Errors identified in processing of FOI requests
39. On 29 October 2021, the Applicant sent an email to 47E(d) referring to “wrong
reference numbers” used by 47E(d) in correspondence regarding the FOI requests.21
40. For example, on 11 November 2021, 47E(d) issued the Applicant with a letter advising
that where errors in correspondence have been identified, 47E(d) has taken corrective
action as soon as possible.22 47E(d) is not aware of any additional correspondence sent
to the Applicant with errors which have not yet been corrected.
Previous advice to Applicant about scope and content of FOI requests
s 22
41. 47E(d) has advised the Applicant on a number of occasions that needs to breakdown
s 22 FOI requests so that it is clearly identified what the requests seek access to. The
Applicant has been advised to be specific in drafting s 22 FOI requests. The Applicant was
s 22
s 22
advised that if required different, specific documents, should lodge a separate
s 22
request for each specific document. Further, the Applicant was advised that is only
entitled to access documents in existence, not to request access to information. The
Applicant was reminded of 47E(d)
advice in that regard by its letter dated
11 November 2021.23
42. Despite that, the Applicant has not adopted 47E(d)
advice, instead, the Applicant
continues to lodge requests, including requests which seek:
a. access to a number of different categories of documents;24
b. access to documents that are unclear, ambiguous and require consultation;25
and
c. access to information rather than to documents in existence.26
21 See document number 44 (request number 47E(d) - pages 14 to 17) of Attachment 2.
22 See document number 5 (pages 29 to 43) of Attachment 2.
23 See document number 5 (pages 29 to 43) of Attachment 2.
24 See for example, request number 47E(d)
25 See, for example, request numbers 47E(d)
9
Alternatives exhausted by this agency
43. 47E(d) has taken other steps to regulate or reduce the impact that the FOI requests
may have on the workload and operations of 47E(d) In particular, 47E(d) has:
a. engaged in request consultation processes with the Applicant about
numerous FOI requests under section 24AB of the FOI Act;
b. sought the Applicant’s agreement to extensions of processing time under
section 15AA of the FOI Act; and
c. applied to the OAIC for an extension of processing time after decisions have
become deemed refusal decisions under section 15AC of the FOI Act.
s47E(d)
47E(d)
47E(d)
47E(d)
47E(d)
s 22
45. 47E(d) has previously advised the Applicant that may seek access to documents by
way of administrative access. 47E(d) has also considered whether any of the FOI
requests may be able to be dealt with by way of administrative access. To-date, it has
not been possible for 47E(d) to process any of the FOI requests by way of
administrative access. 47E(d) advised the Applicant of these matters by its letter dated
11 November 2021.27
Objects of the FOI Act
46. 47E(d) has taken into account the balancing of its interests and the interests of the
Applicant. 47E(d) has had regard to the general objects set out in section 3 of the FOI
Act.
47. 47E(d) considers that a decision to grant the declaration sought would not compromise
the objects of the FOI Act.
Exercise of discretion
48. 47E(d) acknowledges that the power to make a declaration is discretionary. In light of
the material and information relied upon, 47E(d) considers that an exercise of the
discretion to make the declaration sought against the Applicant would be appropriate in
this case.
OAIC Decisions on Applications for Vexatious Applicant Declarations
26 See, for example, request numbers 47E(d)
27 See document number 5 (pages 29 to 43) of Attachment 2.
10
49. 47E(d) has considered each of the decisions made by the OAIC in which vexatious
applicant declarations have been made. In formulating this application and 47E(d)
proposed terms and conditions for a declaration, 47E(d) has considered not only the
number of access actions in each decision, but also the circumstances and factors that
were relevant to the declarations made in each decision.
50. I
enclose as
Attachment 5 a schedule of OAIC decisions on applications for vexatious
applicant declarations.
51. Ultimately, 47E(d) considers that if a vexatious applicant declaration is not made, the
Applicant will continue to repeatedly lodge access actions with 47E(d) causing further
unreasonable interference with 47E(d)
operations and resources.
Supporting evidence
52. In support of 47E(d)
application, I
enclose the following documents:
Attachment 1 – Schedule of FOI requests made by the Applicant between
1 September 2021 to 4 January 2022 (schedule current as at 17 January 2022).
Attachment 2 – Index and relevant correspondence between the Applicant and
47E(d) (current as at 17 January 2022).
Attachment 3 – 3.10 47E(d)
Attachment 4 - Copy of extract of s 22
.
Attachment 5 – Schedule of OAIC decisions on applications for vexatious applicant
declarations.
53. Due to the size of the attachments, I have made the attachments available for
download from a link contained in the email attaching this application. Please advise
if you are unable to access and download the attachments.
Proposed terms and conditions for declaration
54. 47E(d) considers that any declaration should include the following proposed terms and
conditions:
Respondent = 47E(d)
For a period of two (2) years, from the date of this decision, 47E(d)
47E(d) is not required to consider:
Any request by the Respondent under section 15 of the
Freedom of Information Act
1982 (FOI Act); or
Any application by the Respondent for internal review of an access refusal decision;
11
UNLESS
The Respondent has applied in writing to the Office of the Australian Information
Commissioner (OAIC) to make the request or application and the OAIC has granted
written permission for the request or application to be made;
AND
The Respondent has provided a document from the OAIC evidencing that permission has
been granted.
The OAIC will not consider any application by the Respondent for permission unless:
(a) The request meets the requirements of section 15 of the FOI Act; and
(b) The request or internal review application is not vexatious in nature.
The Respondent is limited to making one application for permission to make one request
under section 15 of the FOI Act or one application for internal review under section 54B
of the FOI Act to the OAIC per calendar month.
47E(d)
47E(d) is not required to further process:
(a) any request for access pursuant to section 15 of the FOI Act which has been made by
the Respondent but has not yet been decided as at the date of this declaration; Or
(b) any application for internal review pursuant to section 54B of the FOI Act which has
been made by the Respondent but has not yet been decided as at the date of this
declaration.
55. 47E(d) submits that the Respondent should be named in any decision published by the
OAIC.
Contact details
56. Given the potential for a large number of additional access actions to be taken by the
Applicant at any time, the 47E(d) respectfully requests that your office give urgent
consideration to this application.
57. Should you require any further information, or wish to discuss this application further,
please contact 47E(d)
47E(d)
using the details below:
47E(d)
47E(d)
12
Yours sincerely
47E(d)
47E(d)
1 February 2022
13
LODGE,Justin
From:
47E(d)
Sent:
Thursday, 17 February 2022 5:54 PM
To:
FOIDR
Cc:
47E(d)
Subject:
Application pursuant to section 89K of the FOI Act [Our ref 47E(d)
] [SEC=OFFICIAL]
Attachments:
20220211 - Application under s 89K of the FOI Act for further VAD - s
(updated).pdf;
47F,
20211111 - Attachment A - All communications from s 47F,
since 24 February 2020 -
47E(d
21007429.pdf; Attachment B - s 47F,
Access Application History.XLSX
47E(d)
)
47E(d)
CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognise
the sender and know the content is safe.
Dear Office of the Australian Information Commissioner,
Please find attached an application from 47E(d)
dated 17 February 2022 for a47E(d) vexatious applicant
declaration against s 47F, 47E(d)
Please do not hesitate to contact me should you have any difficulty opening the attachments.
Yours sincerely
47E(d)
47E(d)
acknowledges the Traditional Owners of the land now called Australia. We pay our respect to all
Elders, past, present and emerging of all Aboriginal and Torres Strait Islander nations.
Please note: This email and any attachments may contain information subject to legal professional privilege or information that is otherwise
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1
47E(d)
If not delivered return to
47E(d)
17 February 2022
Our ref. 47E(d)
Elizabeth Hampton
Acting Freedom of Information Commissioner
Office of the Australian Information Commissioner
By email:
xxxxx@xxxx.xxx.xx
Dear Ms Hampton
Application for 47E(d)
vexatious applicant declaration against 47E(d), s 47F
1.
47E(d)
(the
Agency) seeks 47E(d)
pursuant to s 89K of the
Freedom of Information Act
1982 (Cth) (
FOI Act) against s 47F, 47E(d) 47E(d)
47E(d)
(47E(d)
2.
s 47F, 47E(d)
s 47F
s47E(d)
47E(d)
s 22
47E(d)
47E(d)
s 47F
3.
The terms of the declaration that 47E(d)
seeks are as follows:
1. 47E(d)
, 47E(d)
is not required to consider:
a. any s47E( requests by the respondent [s 47F, 47E(d) under s 15 of the FOI
Act, or d)
b. any application by the respondent [s 47F, 47E(d) for internal review of an
access refusal decision.
2. 47E(d)
is not required to further process:
a. any outstanding request for access by the respondent [s 47F, 47E(d) under
s 15 of the FOI Act, or
b. any outstanding application for internal review of an access refusal
decision under s 54B of the FOI Act.
3. 47E(d)
, the
OIAC will not consider any request to the OIAC by the respondent under s 15
Page
1 of
9
47E(d)
of the FOI for access to a document relating to any matter between the
respondent and 47E(d)
4.
47E(d)
submits that a declaration of three years (36 months) is
necessary and appropriate as, 47E(d)
47E(d)
s 47F, 47E(d) continues
to harass and abuse agency staff in relation to s 22 various longstanding grievances.
s 22 continues to display a pattern of behaviour that indicates an intention to use the
FOI Act for collateral purposes unrelated to a genuine intention to seek access to
documents. 47E(d)
is concerned that, without an 47E(d)
the pattern
of behaviour will escalate.
5.
In support of this position, 47E(d)
relies on the following supporting
documentation.
SUPPORTING DOCUMENTATION
6.
In support of this application, we provide the following attachments:
a.
Attachment A – a bundle containing all documents sent by s 47F, 47E(d) since the
47E(d)
47E(d)
starting with s 47F, 47E(d)
FOI request received on 30 November 2020, and
b.
Attachment B – a spreadsheet setting out the correspondence 47E(d) has
received from s 47F,
and been required to deal with related to s 22 access
actions from 26 Sept
47E(d) ember 2017 to 24 September 2021.
PART 1 – BACKGROUND
7.
As is reflected in Attachment B, and was considered in 47E(d)
s 47F, 47E(d) has a history of engagement with 47E(d)
(formerly the
s 47F
s47E(d)
In a two-year period from 25 September 2017 to 21 October
2019, 47E(d), s 47F made 102 separate access actions to the Agency under the FOI
Act, over 60 external enquires to the Agency’s Freedom of Information Team (FOI
Team) and seven Freedom of Information (
FOI) complaints about 47E(d)
to the OAIC.
s47E(d)
47E(d)
s 47F, 47E(d)
47E(d)
s 47F, 47E(d)
47E(d)
47E(d)
s 47F, 47E(d)
47E(d)
10.
In addition to the access requests, s 47F, 47E(d) has also sent 47E(d)
39
pieces of correspondence including: invoices addressed to particular 47E(d)
1
Requests are at pages 1 and 2, and the Agency’s response is at page 4 (and attached
repeatedly to later correspondence).
Page
2 of
9
47E(d)
47E(d)
s 47F,
s47E(d)
47E(d)
47E(d)
s 47F
s 22
s 47F
s 47F
11.
In this correspondence, s 47F, 47E(d) continues to make unsubstantiated, derogatory
and inflammatory allegations against 47E(d)
staff, which exposes them
to offensive material that has caused distress. The correspondence indicates that
s 47F, 47E(d) is not responsive to the reasonable restrictions on use of access ac tions,
and despite these restrictions, s 22 continues to engage in harassing conduct directed
towards individual agency officers.
FOI workload of 47E(d)
12.
By way of context, 47E(d)
47E(d)
Further, 47E(d)
has 47E(d)
As noted in the s 47F
47E(d)
estimated that over a six-month period from June to November
Page
3 of
9
47E(d)
2018, FOI officers had dedicated in excess of 245 hours to deal with s 47F, 47E(d)
various access actions and enquiries. While it is not possible to estimate the total
time taken and 47E(d)
, the total
volume of correspondences 47F, 47E(d) has sent (as shown in Attachment B) is more
than 3 times the amount received in that period.
PART 2 – GROUNDS FOR DECLARATION
Relevant provisions of the FOI Act
13.
Section 89L(1) of the FOI Act provides:
(1)
The Information Commissioner may make a vexatious applicant
declaration in relation to a person only if the Information
Commissioner is satisfied of any of the following:
(a) that:
(i) the person has repeatedly engaged in access actions; and
(ii) the repeated engagement involves an abuse of the process
for the access action;
(b) a particular access action in which the person engages involves,
or would involve, an abuse of the process for that access action;
(c) a particular access action in which the person engages would be
manifestly unreasonable.
14.
Section 89L(2) provides that a person makes an access request if they make a
request for access to documents, a request pursuant to s 48 of the FOI Act for
amendment or annotation of a record, an application for internal review or an
application for IC review.
15.
Section 89L(4) defines ‘abuse of process’ as:
abuse of the process for an access action includes, but is not limited
to, the following:
(a) harassing or intimidating an individual or an employee of an
agency;
(b) unreasonably interfering with the operations of an agency;
(c) seeking to use the Act for the purpose of circumventing
restrictions on access to a document (or documents) imposed by
a court.
16.
As noted in the Guidelines issued by the Australian Information Commissioner under
s 93A of the FOI Act (
FOI Guidelines)
12.55 A vexatious applicant declaration may be revoked or varied (s 33 of
the
Acts Interpretation Act 1901).
12.56 The power to revoke or vary a vexatious applicant declaration under s
33(3) of the AI Act is exercisable ‘in the like manner and subject to the like
conditions’ as the original decision. In order to vary a vexatious applicant
declaration, the Information Commissioner must be satisfied of the grounds in s
89L at the time of the variation. While the information relied upon in making the
Page
4 of
9
47E(d)
original decision may continue to be relevant, the Information Commissioner will
also need to consider any new, relevant information that has arisen since that
time and comply with procedural fairness obligations contained in s 89L(3).
s 47F, 47E(d)
access actions s47E(d)
involve an abuse of process:
s 89L(1)(a)
17.
47E(d)
submits an 47E(d)
against s 47F, 47E(d) would be appropriate as s 22 access actions s47E(d)
s4 amount to an abuse of process.
7
18.
The access actions s 47F, 47E(d) s47E(d)
E(
s47E(d)
together with other correspondences 22 sends, shows s 22 continues to be
d)
unwilling to moderate s 22 use of access actions. Further, s 47F, 47E(d)
correspondence displays a continuation of s 22
s
previous pattern of aggravation,
harassment and abusive conduct towards individual agency officers and the agency
as a whole.
19.
A number of the access actions that s 47F, 47E(d) sought to make for documents about
s 22
include defamatory and unsubstantiated allegations that, on
their face, are manifestly unreasonable in the circumstances.
20.
47E(d)
s47E(d)
s 47F, 47E(d)
s47E(d)
s 47F, 47E(d)
s47E(d)
s47E(d)
s 47F, 47E(d)
47E(d)
47E(d)
s 22
s 22
s 47F, 47E(d)
s 22
s 47F, 47E(d)
47E(d)
Page
5 of
9
47E(d)
s47E(d)
Harassing or intimidating an individual or an employee of the agency
25.
47E(d)
submits that s 47F, 47E(d) access actions amount to an abuse of
process on the basis that it constitutes harassment and intimidation of an individual
or an employee of the agency within the meaning of s 89L(4)(a).
26.
As indicated in the FOI Guidelines at [12.22], “
The terms ‘harassing’ and
‘intimidating’ are not defined in the FOI Act and therefore have their ordinary
meaning. To ‘harass’ a person is to disturb them persistently or torment them; and to
‘intimidate’ a person is to use fear to force or deter the actions of the person, or to
overawe them.”
27.
s 47F, 47E(d)s47E(d)
access actions demonstrate the following circumstances that
may establish harassment and intimidation indicated at [12.24] of the FOI
Guidelines:
the content, tone and language of a person’s correspondence with an
agency, especially if language is used that is insulting, offensive or abusive
unsubstantiated, derogatory or inflammatory allegations against agency staff
requests that are designed to intimidate agency staff and force them to
capitulate on another issue
requests of a repetitive nature that are apparently made with the intention of
annoying or harassing agency staff
a person’s refusal or failure to alter dubious conduct after being requested by
an agency to do so.
28.
The content directed at individual officers personally and the combative tone of both
access actions was clearly intended to harass and intimidate agency staff. The
access actions also included:
28.1.
unsubstantiated, derogatory and inflammatory allegations against Agency
and OAIC staff of money laundering and fraud, stalking, attempting to create
false records and abuse of power.
28.2.
requests designed to intimidate agency staff and force them to capitulate on
s 47F, 47E(d) other demands including through threats to pursue accounts
issued by s 47F, 47E(d) and implied threats that officers would be referred for
criminal prosecution or face civil proceedings
28.3.
requests of a repetitive nature similar to those referred to in [15] of the
47E(d)
in which s 47F, 47E(d) pattern of sending correspondence
to specific FOI staff who have previously provided decisions and advising s 22
will be charging the individual in hourly rates (see letter received 1/2/2021 at
page 8 and each subsequent piece of correspondence at Attachment A), and
28.4.
an evident unwillingness to alter s 22 dubious conduct since being requested
to do so (see [61] to [68] of the 47E(d)
Page
6 of
9
47E(d)
Conduct is both subjectively and objectively harassing and intimidatory
29.
In ‘
W’, the IC indicated the question of harassment or intimidation must be
approached objectively (at [31]). The FOI Guidelines also make this point at
paragraph [12.23], indicating the issue is whether a person has engaged in
behaviour that could reasonably be expected on at least some occasions to have
the effect, for example, of tormenting, threatening or disturbing agency employees.
30.
However, in
Sweeney and Australian Information Commissioner and Australian
Prudential Regulation Authority (Joined Party) [2014] AATA 539, Deputy President
Constance indicated that ‘an individual or an employee must be shown to have felt
harassed and/or intimidated in fact and the conduct must be shown to be harassing
and/or intimidating on an objective basis’ (at [52]). On this view, the harassment
and/or intimidation must be subjectively felt by an officer as well as the conduct itself
being shown that it could reasonably be regarded as harassing and/or intimidating.
31.
47E(d)
submits that the nature and content of s 47F, 47E(d) valid request,
as well as s 22 invalid request and written correspondence are both subjectively and
objectively harassing and intimidating. Over the course of several years staff
members of the 47E(d)
FOI team have reported feeling harassed by the
voluminous, bundled nature of s 47F, 47E(d) correspondence along with the personal
nature of correspondence and repetitive, threatening and offensive content (such as
threats of financial charges and legal action against individuals and the offensive,
misogynistic nature of the content in s 47F, 47E(d) s47E(d)
).
32.
47E(d)
submits that it has exercised considerable goodwill towards s 47F, 47E(d)
in the past and has responded to s 22 requests in accordance with the objects
and purposes of the FOI Act,
s 47F
47E(d)
33.
However, despite all efforts made by 47E(d)
to limit the impact of s 47F, 47E(d)
access actions and the operation of the 47E(d)
s 47F, 47E(d)
continues to make access actions and send significant volumes of correspondence
to the FOI team. In these circumstances, 47E(d)
submits that the
circumstances warrant a 47E(d)
being made in the proposed terms on
the basis of the abuse of process from actions that harass or intimidate agency
employees.
Unreasonably interfering with the operations of the agency
34.
47E(d)
contends that s 47F, 47E(d) pattern of access actions are also an
abuse of process because they unreasonably interfere with the operations of
47E(d)
within the meaning of s 89L(4)(b), and it is expected that the
access requests and offensive conduct will escalate should the 47E(d)
35.
The following factors identified in the FOI Guidelines at [12.27] relevant to
considering this type of abuse of process are evident in s 47F, 47E(d) conduct:
35.1.
The impact of s 22 access actions on the FOI administration in the agency that
was extreme before the 47E(d)
has reduced but remains
Page
7 of
9
47E(d)
significant with repetitive and bulk correspondence related to other
complaints and entirely irrelevant material (s47E(d)
35.2.
47E(d)
has used all of the available provisions under the FOI Act
to lessen the impact of s 47F, 47E(d) access actions on its operations without
any indication s 22 intends to confine s 22 behaviour to alter s 22 dubious
conduct (see 47E(d)
35.3.
s 47F, 47E(d) actions continue to portray an immoderate prolongation of
matters that have been dealt with previously (including charges for previous
access actions that led to 47E(d)
and
35.4.
s 22
and has not cooperated
reasonably with 47E(d)
s 22
s47E(d)
36.
In addition to the above factors from the FOI Guidelines, the nature of 47E(d)
47E(d)
role is relevant to the unreasonable interference with
agency functions. As 47E(d)
is an agency 47E(d)
s 47F, 47E(d) pattern of repeated access actions require substantial time to review,
process and track. 47E(d)
estimates this has taken in excess of 40 hours
for staff in the FOI team 47E(d)
37.
Previously, when s 47F, 47E(d) was able to make access requests, this equated to an
excess of 245 hours of 47E(d)
time 47E(d)
47E(d)
would expect, 47E(d)
, that s 47F, 47E(d) would seek to
further engage in repeated access actions given s 22 unchanging behaviour to date
that would again require the dedication of excessive amounts of 47E(d)
time to respond to s 22
s
requests.
Particular access action would be manifestly unreasonable
38.
47E(d)
also submits that s 47F, 47E(d) first access action received on
30 November 2020 would be manifestly unreasonable. In this request s 22
s
sought
access to:
s 22
39.
The nature of the request is clearly designed to seek the personal information of
s 47F, 47E(d)
s 47F
s 47F
s 22
40.
It is evident from the nature of the request and correspondence provided by
s 47F, 47E(d) such as the s 22
that:
Page
8 of
9
47E(d)
s 47F
s 47F
s 47F
s 47F
s 47F
s 22
s 47F
s 47F
s 47F
s 47F
s 47F
41.
The FOI Guidelines at [12.31] state that:
The term ‘manifestly unreasonable’ is not defined in the FOI Act. The factors
that are relevant in applying this ground are likely to be similar to those
discussed above in relation to whether a particular access action or series of
actions would be an abuse of process under the FOI Act.
42.
s 47F, 47E(d) correspondence includes repeated and specific, unsubstantiated,
derogatory and inflammatory allegations against s 47F
s 22
There is no
indication that s 47F, 47E(d) s 22
s 47F actions to seek documents held by 47E(d)
about s 22
43.
47E(d)
submits that in these circumstances, and in the context of
s 47F, 47E(d) s47E(d)
47E(d)
CONCLUSION
44.
47E(d)
contends that these matters justify the 47E(d)
45.
We would be happy for your office to provide a copy of this submission and its
attachments to s 47F, 47E(d), or if requested, to send a copy of this submission to s 22
Yours sincerely
47E(d)
Email:
xxxxx@xxxx.xxx.xx
2 Attachment A, Page 25 s 22
3 Attachment A, Page 26 - s 22
4 Ibid
5 Abov e, n 2.
Page
9 of
9
47E(d)
LODGE,Justin
From:
47E(d)
Sent:
Tuesday, 14 June 2022 3:40 PM
To:
OAIC - FOI DR
Cc:
47E(d)
Subject:
47E(d) Vexatious Applicant Declaration - s 47F, 47E(d) [SEC=OFFICIAL:Sensitive]
Attachments:
FOI - Vexatious Applicant Declaration - 47E(d), s 47F.pdf
CAUTION: This email originated from outside of the organisation. Do not click links or open attachments unless you
recognise the sender and know the content is safe.
OFFICIAL: Sensitive
Good afternoon
Please see attached correspondence from 47E(d)
requesting the Information Commissioner exercise the discretion
under section 89K of the
Freedom of Information Act 1982 to declare 47E(d), s 47F a vexatious applicant.
Should you require more information please contact 47E(d)
or the FOI team at
47E(d)
Kind regards
47E(d)
______________________________________________________________________
IMPORTANT: This message, and any attachments to it, contains information
that is confidential and may also be the subject of legal professional or
other privilege. If you are not the intended recipient of this message, you
must not review, copy, disseminate or disclose its contents to any other
party or take action in reliance of any material contained within it. If you
have received this message in error, please notify the sender immediately by
return email informing them of the mistake and delete all copies of the
message from your computer system.
______________________________________________________________________
1
47E(d)
47E(d)
Official: Sensitive
Mr Leo Hardiman PSM QC
Freedom of Information Commissioner
Of ice of the Australian Information Commissioner
By email: xxxxx@xxxx.xxx.xx
Dear Commissioner
Application for a vexatious applicant declaration: 47E(d), s 47F
I am writing on behalf of the 47E(d)
(the Department) to request
the Information Commissioner exercise the discretion under section 89K of the
Freedom of Information
Act 1982 (the FOI Act) to declare 47E(d), s 47F a vexatious applicant in connection with access
actions for:
47E(d)
Subsection 89L(1) of the FOI Act provides that the Information Commissioner may make a vexatious
applicant declaration in relation to a person only if the Commissioner is satisfied of any of the following:
(a) that (i) the person has repeatedly engaged in access actions; and (i ) the repeated engagement
involves an abuse of the process for the access action;
(b) particular access action in which the person engages involves, or would involve, an abuse of the
process for that access action;
(c) a particular access action in which the person engages would be manifestly unreasonable.
The Department submits that 47E(d), s 47F ‘has repeatedly engaged in access actions’
(s 89L(1)(a)(i) ; ‘the repeated engagement involves an abuse of the process for the access action’ (s
89L(1)(a)(i ) ; and the repeated access actions are also an abuse of process by ‘unreasonably interfering
with the operations of an agency’ (s 89L(4) .
Between 1 August 2019 and 3 May 2022 the Department has received 87 separate access actions from
47E(d), s 47F regarding 47E(d)
(ful details at Attachment B) comprising:
• 63 requests from 47E(d), s 47F, 47E(d), s 47F ;
47E(d)
OFFICIAL: SENSITIVE
• 20 applications for internal review from 47E(d), s 47F
; and
• Notice of 4 applications for an Information Commissioner review from 47E(d), s 47F
In accordance with paragraph 12.33 of the
Guidelines issued by the Australian Information Commissioner
under s. 93A of the Freedom of Information Act 1982 (the FOI Guidelines), on 29 July 2021, the
Department notified47E(d), s 47F that should s 22
s
continue to repeatedly engage in access actions under
the FOI Act, the Department would consider seeking a vexatious applicant declaration from the
Information Commissioner (the vexatious applicant consideration notice) (Attachment A).
The Department is aware that the 47E(d)
have received requests for access to documents relating to the 47E(d)
. The Department has received eight consultation requests from 47E(d)
in relation to access
actions under the FOI Act received from 47E(d), s 47F.
Separately,47E(d), s 47F has made several access actions in connection with the Department’s handling of
s 22 FOI requests, including the Department’s consideration of applying for a vexatious applicant
declaration. More details are below.
Context relevant to the access actions
The matters dealt with by the Department under the 47E(d)
include
47E(d)
47E(d)
47E(d)
s 47F, 47E(d) s 22
.
47E(d)
s 47F, 47E(d)
s 47F
s 22
47E(d)
2
OFFICIAL: SENSITIVE
s 47F, 47E(d) s 22
The Department has advised 47E(d), s 47F and other parties
s 47F
s 22
of this outcome a number of times.
47E(d), s 47F
47E(d), s 47F ineligibility for the s47E(d turns on the exclusion of commercial contractors, however
47E(d), s 47F
)
has utilised the FOI system to assert publicly that the Department is af ected by fraud or
misconduct. An annotation from 47E(d), s 47F on 47E(d) s 22
s 47F
s 22
In some instances, 47E(d), s 47F has made these allegations against named of icers in the Department.
The allegation appears in part connected to two documents released to 47E(d), s 47F under FOI. 47E(d)
47E(d), s 47F or47E(d)
s 22
47E(d), s 47F has made numerous FOI requests for documents the Department holds relating to 47E(d)
The Department has repeatedly notified 47E(d), s 47F that no documents exist.
The other document is a 47E(d)
he Department understands that 47E(d), s 47F was provided 47E(d)
47E(d)
3
OFFICIAL: SENSITIVE
Ultimately, 47E(d)
Following an Information Commissioner review decision (see F47E(d)
) the
Department provided 47E(d), s 47F 47E(d)
Grounds for application – extracts from the FOI Act and FOI Guidelines
The Department has considered Part VI I, Division 1 of the FOI Act which sets out the regime for a
vexatious applicant declaration, and Part 12 of the FOI Guidelines dealing with a declaration of that kind.
Subsection 89L of the FOI Act provides (in part):
(1) The Information Commissioner may make a vexatious applicant declaration in relation to a person
only if the Commissioner is satisfied of any of the fol owing:
(a)
that:
(i)
the person has repeatedly engaged in access actions; and
(i ) the repeated engagement involves an abuse of the process for the access action;
(b)
a particular access action in which the person engages involves, or would involve, an abuse
of the process for that access action;
(c)
a particular access action in which the person engages would be manifestly unreasonable.
(2) A person engages in an access action
if the person does any of the fol owing:
(a)
makes a request;
(b)
makes an application under section 48;
(c)
makes an application for internal review;
(d)
makes an IC review application.
(4) In this section:
Abuse of the process for an access action
includes, but is not limited to, the following:
(a)
harassing or intimidating an individual or an employee of an agency;
(b)
unreasonably interfering with the operations of an agency;
(c)
seeking to use the Act for the purpose of circumventing restrictions on access to a
document (or documents) imposed by a court.
4
OFFICIAL: SENSITIVE
For reasons set out below, the Department contends that 47E(d), s 47F has repeatedly engaged in access
actions regarding 47E(d)
and that the repeated engagement involves an abuse of process for
the purposes of subsection 89L(1)(a) of the FOI Act. The access actions col ectively cover requests and
applications of the types described in subsections 89L(2)(a), (c) and (d).
Person has repeatedly engaged in access actions – subparagraph 89L(1)(a)(i)
The FOI Guidelines provide:
12.17 There is no fixed number of access actions required to establish a pattern of repeated
requests. Whether such a pattern exists wil depend in part on the nature of the abuse of process
that is said to be involved. For example, if it is asserted that a person is repeating a request that
has earlier been processed and decided by an agency, or is harassing agency employees, a small
number of requests may establish a pattern. On the other hand, if it is asserted that a person has
repeatedly made dif erent requests that in combination unreasonably interfere with an agency’s
operations, a higher number of requests may be required to establish a pattern of repeated
requests.
12.18 The agency or minister is not required to show that al of the conduct of the person is an
abuse of process. For the purposes of s 89L(1)(a), ‘[i]t is sufficient that some of the access actions
can be characterised as an ‘abuse of process for the access action.’
A short outline of the access actions fol ows. A detailed summary of access actions by 47E(d), s 47F is set
out at Attachment B.
In addition to receiving access requests from 47E(d), s 47F
, the Department
notes it has received overlapping or similar requests for 47E(d)
from a range of other persons.
Between 1 August 2019 and 28 July 2021 (the date before the Department sent the vexatious applicant
consideration notice), the Department received 67 access actions:
• 50 FOI requests from 47E(d), s 47F
• 15 internal review requests from 47E(d), s 47F
; and
• 2 Information Commissioner review applications from 47E(d), s 47F
s 47F
Since 47E(d), s 47F received the vexatious applicant consideration notice, between the period 29 July 2021
and 8 June 2022 the Department received 20 access actions:
• 13 FOI requests related to 47E(d)
, including 4 related to the vexatious applicant
consideration notice (47E(d)
);
• 5 internal review requests related to 47E(d)
; and
• 2 Information Commissioner review applications.
Many of the access actions repeatedly seek the same information including:
• 47E(d)
47E(d)
5
OFFICIAL: SENSITIVE
• 47E(d)
47E(d)
•
47E(d), s 47F
the Department’s handling of
FOI requests, including the Department’s
consideration of applying for a vexatious applicant declaration. For one of these requests, the
Department prepared a record of all FOI requests made by 47E(d), s 47F (see 47E(d) ).
While the access actions are predominantly concerned with 47E(d)
, s 47F, 47E(d) has made
repeated requests in the same or similar terms or covering decisions and documents already provided to
s 22
• 47E(d), s 47F
has submitted a number of requests for 47E(d)
47E(d)
and documents 47E(d)
(47E(d)
) and in 2012 (47E(d)
) which do not exist.
• For requests in similar terms, see for example 47E(d)
at Attachment B.
• For requests covering a previous access action process which has concluded or where a right of
review has expired, see for example 47E(d)
In total, the Department can identify 87 access actions attributed to 47E(d), s 47F
spanning a period of less than 4 years. The Department has made a range of decisions covering
full access, partial access, no documents and practical refusal decisions.
s 47F
s 47F
47E(d) s 22
s 47F
or to limit s 22
requests to a more reasonable amount.
The Department considers that 47E(d), s 47F repeated access actions s 22
s 47F
The Department submits that 47E(d), s 47F has made multiple applications on the same facts to seek a
dif erent outcome for 47E(d)
as well as previous access actions decisions
which have already been decided. The Department notes that some of 47E(d) s 22
s 47F
(see for
example, 47E(d)
The Department also notes 47E(d), s 47F has submitted requests for information and documents
exempted through a previous or historical access action process which has concluded or in relation to
6 FOI Guidelines [12.27].
6
OFFICIAL: SENSITIVE
which s 22 no longer has a right of review (47E(d)
.
Given there is no new information (including no further documents in the Department’s possession), the
Department submits that 47E(d), s 47F requests have become vexatious and oppressive.
The Department contends the volume of access actions for 47E(d)
since mid-2019 meets the
criterion in subparagraph 89L(1)(a)(i), that is, that a person has repeatedly engaged in access actions.
The repeated engagement involves an abuse of the process for the access action – subparagraph
89L(1)(a)(ii)
The grounds that constitute an ‘abuse of the process for an access action’ are not exhaustively defined in
subsection 89L(4) of the FOI Act. The Department contends that 47E(d), s 47Frepeated access actions
are an abuse of process that satisfy both paragraphs (a) and (b) of the definition of ‘
Abuse of the process
for an access action’ in subsection 89L(4) of the FOI Act.
Harassing or intimidating an individual or employee (abuse of process ground)
47E(d), s 47F appears aware of the impact of s 22 access actions on the Department.
• s 22
s 47F
s 47F
47E(d)
47E(d), s 47F has not curbed s 22
s
access actions since the Department sent a vexatious applicant
consideration notice on 29 July 2021. In that letter, the Department asked 47E(d), s 47F to consider
whether continuing to make access requests under the FOI Act is achieving s 22 goal (47E(d)
47E(d) and to re-consider the need to make further FOI requests or limit these to a more reasonable
amount (Attachment A refers).
Since receiving the vexatious applicant consideration notice, 47E(d), s 47F has submitted at least 20 access
actions under the FOI Act. This includes 4 requests for information regarding the Department’s
consideration of 47E(d), s 47F as a vexatious applicant (47E(d)
), one of which was also the subject of an application for an internal review 47E(d)
The FOI Guidelines explain that harassment and intimidation for the purposes of subsection 89L(4)(a) of
the FOI Act may be established by a variety of circumstances. The Department considers that
47E(d), s 47F
repeated access actions are somewhat analogous to the fol owing circumstances listed at
paragraph 12.24 of the FOI Guidelines:
• requests that are designed to intimidate agency staf and force them to capitulate on another
issue,
7
OFFICIAL: SENSITIVE
• requests of a repetitive nature that are apparently made with the intention of annoying or
harassing agency staff.
The Department contends it is reasonable to infer from the repeated access actions that 47E(d), s 47F’s
access actions are designed either to force a change in policy and/or to fuel s 22 assertions of
maladministration, fraud or misconduct by named of icers in the Department. It is the Department’s view
that 47E(d), s 47F intends to cause annoyance or frustration to of icers in the Department through a
sustained campaign of making access requests for 47E(d)
Importantly, against a context that 47E(d)
s 47F
the
Department contends that the repeated access actions constitute unreasonable badgering in support of
a personal objective and grievance with the Department. This comprises a form of harassment or
intimidation and is an abuse of the process for access actions under the FOI Act.
Unreasonably interfering with the operations of an agency (abuse of process ground)
The Department contends that the harassing or intimidating conduct by 47E(d), s 47F referenced above
of itself constitutes unreasonable interference with the operations of the Department and is an abuse of
the process for access actions for the purposes of subsection 89L(4)(b) of the FOI Act.
Having regard to the matters identified in paragraph 12.27 of the FOI Guidelines, it is also the
Department’s contention that the repeated access actions are an excessive and unreasonable burden on
Departmental resources and as such constitute an unreasonable interference with the Department’s
operations.
The access actions are handled by of icers in the Department’s FOI team, the Branch responsible for
47E(d)
and three 47E(d) of icers who make decisions associated with the access
actions. The high volume of requests for 47E(d)
means that since August 2019 there has been
an almost continuous processing impact across one or more of these work areas.
Processing the access actions is made more complex as previous related decisions need to be reviewed.
The Department has at times sought to manage the requests by involving the same of icers to make
processing the requests more efficient. However, of icer mobility means that those arrangements have
not been enduring over time and case of icers need to read into the complex and voluminous
background in relation to access actions for the 47E(d)
.
In processing access actions, the Department has, at various times, worked with 47E(d), s 47F to revise the
scope of s 22
s
requests, guided s 22 to publicly available information and in some cases, released
information under administrative access arrangements (see for example 47E(d) .
On the basis of a modest average time to process an initial request of 20 hours (combined time of all
of icers involved in processing an initial request), and a modest average time to process an internal
review of 10 hours, this equates to approximately 1,838 hours (comprising 63 initial requests and 20
8
OFFICIAL: SENSITIVE
internal review requests received from 47E(d), s 47F
). This equates to
approximately 49 weeks for one of icer at the Department working 37.5 hours per week. We consider
this is a very modest estimate for the long period of sustained access actions. Additional resource
impacts apply to responding to requests in connection with IC review applications, including the
preparation of submissions.
For the above reasons, including the matters discussed above relating to the repetitive and overlapping
nature of the requests, the Department contends the repeated access actions by 47E(d), s 47F represent a
whol y unreasonable resource impact, unreasonably interfere with the operations of the Department, and
constitute an abuse of the process within the meaning of subsection 89L(4)(b) of the FOI Act.
Proposed declaration
The FOI Guidelines provide that an application for a vexatious applicant declaration must include any
proposed terms or conditions which the agency or minister believes the declaration should include7.
The Department proposes this declaration apply to any access actions by 47E(d), s 47F (or by persons
acting on s 22 behalf) relating to the fol owing matters:
s 22 s 47F
The proposed declaration should provide that for a period of five (5) years the Department is not
required to consider:
•
47E(d), s 47F
any on-hand or future requests from
under section 15 of the FOI Act,
•
47E(d), s 47F
any on-hand or future applications from
for an internal review of an access refusal
decision,
• any on-hand or future requests under section 15 of the FOI Act where the request is made on
behalf of 47E(d), s 47F, or
• any on-hand or future applications for internal review of an access refusal decision by any person
where the application is made on behalf of 47E(d), s 47F.
The Department currently has 2 actions on-hand from 47E(d), s 47F Separately, the Department is
dealing with 1 further action from other parties on the same subject matter. Such a declaration would
al ow the Department to direct its resources towards its other operations, including other FOI requests,
which have been disrupted by these access actions.
7 FOI Guidelines, [12.34].
9
OFFICIAL: SENSITIVE
The Department does not request that 47E(d), s 47F be named in the published decision. The Department
notes that 47E(d), s 47F did not consent to s 22 name, email, address or phone number being disclosed in
relation to one of s 22 requests s47E(d)
Should you require more information, please contact 47E(d)
Yours sincerely
47E(d)
14 June 2022
10
OAIC - FOI DR
From:
47E(d)
Sent:
Tuesday, 28 June 2022 10:27 AM
To:
OAIC - FOI DR
Subject:
Application for a vexatious applicant declaration [SEC=OFFICIAL:Sensitive, ACCESS=Legal-
Privilege]
Attachments:
Application for a vexatious applicant declaration - s 47F, 47E(d)pdf
Categories:
47E(d)
CAUTION: This email originated from outside of the organisation. Do not click links or open attachments unless you
recognise the sender and know the content is safe.
The sender of this email certifies that its contents, and any attachments, are of an 'OFFICIAL: Sensitive //
Legal Privilege' nature.
Good morning,
Please find attached an Application for a vexatious application declaration from the 47E(d)
Regards,
47E(d)
47E(d)
47E(d)
1
OFFICIAL: Sensitive / Legal Privilege
47E(d)
Mr Leo Hardiman PSM QC
Freedom of Information Commissioner
Office of the Australian Information Commissioner
By email: xxxxx@xxxx.xxx.xx
Dear Commissioner
Application for a vexatious applicant declaration—s 47F, 47E(d)
1
This is an application by the Office of Parliamentary Counsel (47E(d) under section
89K of the
Freedom of Information Act 1982 (
FOI Act). I am writing to request that you
exercise the discretion under that section to declare s 47F, 47E(d) to be a vexatious
applicant in connection with access actions for documents held by 47E(d)
2
This application is related to an application made under section 89K of the FOI Act in
relation to s 47F, 47E(d) on behalf of 47E(d)
47E(d)
I understand that the 47E(d)
has been
submitted to your office, and accordingly, this application refers to the47E(d)
rather than repeating material it contains.
3
Under section 89L of the FOI Act, the Information Commissioner may make a
vexatious applicant declaration in relation to a person only if satisfied that:
(a)
the person has repeatedly engaged in access actions and the repeated
engagement involves an abuse of the process for the access action (paragraph
89L(1)(a)); or
(b)
a particular access action in which the person engages involves, or would
involve, an abuse of the process for that access action (paragraph 89L(1)(b));
or
(c)
a particular access action in which the person engages would be manifestly
unreasonable (paragraph 89L(1)(c)).
4
The grounds on which a declaration is sought in this instance are that:
(a)
s 47F, 47E(d) has repeatedly engaged in access actions, and the repeated
engagement involves an abuse of the process for the access action (paragraph
89L(1)(a)), by:
47E(d)
47E(d)
OFFICIAL: Sensitive / Legal Privilege
(i)
harassing or intimidating employees of 47E(d)
(paragraph 89L(4)(a)); and
(ii)
unreasonably interfering with the operations of 47E(d) (paragraph
89L(4)(b)); and
(b)
if the Information Commissioner makes a determination preventing s 47F, 47E(d)
from making access applications to 47E(d)
documents,
future access actions to 47E(d) by s 47F, 47E(d) for 47E(d)
would
involve an abuse of the process for the access action (paragraph 89L(1)(b)).
5
For the reasons detailed below, there is a clear and convincing need for the
declaration.
6
47E(d) has not yet notified s 47F, 47E(d) of this application. This approach was taken for
the following reasons:
(a)
s 47F, 47E(d) was notified by 47E(d) that 47E(d) was considering seeking a
vexatious applicant declaration and so is aware of this possibility;
(b)
47E(d) understands that, after s 47F, 47E(d) was notified by 47E(d) on 29 July
2021, 47E(d) received at least 20 access actions from s 47F, 47E(d) and 47E(d)
does not have the resources to deal with an increased level of access actions;
(c)
your office may wish to consider our application together with the 47E(d)
leaving insufficient time for 47E(d) to notify s 47F, 47E(d)
separately.
7
However, 47E(d) is willing to defer consideration of this application until s 47F, 47E(d) is
notified of this application, if your office views this as the most appropriate course.
8
47E(d) understands that s 47F, 47E(d) has not yet been given a copy of the 47E(d)
47E(d)preference is that, if possible, s 47F, 47E(d) is not notified of this
application until after s 22 has received a copy of the 47E(d)
47E(d)
The purpose of
47E(d) application will not be clear to s 47F, 47E(d) until s 22 is aware of the detail of the 47E(d)
Further, it appears possible that s 47F, 47E(d) will make further access actions
once notified of any application relating to s 22 as a vexatious applicant. 47E(d) has fewer FOI
resources than 47E(d) to deal with an increased level of access actions.
Context
9
47E(d), s 47F involvement with other agencies in relation to 47E(d) is detailed in
the 47E(d) 47E(d)
47E(d)
10
Following a transfer of functions in October 2012, 47E(d) holds file number 47E(d)
created by the 47E(d)
47E(d)
/ Legal Privilege Page 2
link to page 53 link to page 53
OFFICIAL: Sensitive / Legal Privilege
11
47E(d) view, supported by case law, is that the relevant material is subject to legal
professional privilege.
1 47E(d) as the client agency, is the holder of the privilege, rather than
47E(d) 47E(d) has confirmed that privils47 in the relevant material has not been waived.
E(d
12
47E(d) understands that your offic)e will give a copy of this application to s 47F, 47E(d)
To ensure legal professional privilege in the relevant material is maintained, this application
does not contain information about the relevant material. If this information is required to
consider this application, 47E(d) would first need to ensure arrangements satisfactory to 47E(d)
and 47E(d) are in place to ensure there is no loss of privilege.
Repeated engagement in access actions (subparagraph 89L(1)(a)(i))
13
s 47F, 47E(d) has made 12 access actions to 47E(d)
14
Details of these access actions, and how they were dealt with by 47E(d) are provided in
Attachment A. 47E(d) can provide copies of the access actions and decisions themselves if
your office requires.
15
Ten of the actions relate to the relevant material, or information about the relevant
material. The other two actions relate to FOI requests relating to the relevant material. Access
to material has been granted where appropriate. Decision makers have consistently found the
relevant material in particular to be subject to legal professional privilege, and advised s 47F, 47E(d)
accordingly.
16
As the actions primarily relate to the same material, and entirely relate to the same
issue, this represents a pattern of repeated requests.
2
Abuse of process—harassing or intimidating an individual or employee
(subparagraph 89L(1)(a)(ii) and paragraph 89L(4)(a))
17
Paragraph 12.22 of the FOI Guidelines indicates that persistently disturbing an agency
with requests can constitute “harassing”. 47E(d), s 47F requests have been persistent, and
have had an impact on 47E(d) and its staff. This is detailed further below.
18
Further, the 47E(d)
47E(d)
outlines how repeated access actions by s 47F, 47E(d)
to 47E(d) amount to a form of harassment or intimidation of 47E(d) officers. 47E(d) notes in
particular the reference in the 47E(d)
47E(d)
to circumstances mentioned in paragraph
12.24 of the Guidelines issued by the Information Commissioner under s 93A of the FOI Act
(
FOI Guidelines). 47E(d) requests that 47E(d), s 47F repeated access actions to 47E(d) be
considered as part of the same behaviour. As 47E(d) needs to consult with 47E(d) regarding
requests for release of the relevant material, 47E(d) is aware of requests made to 47E(d) giving
rise to similar consequences for 47E(d) officers. The access actions to 47E(d) are part of the
same campaign of badgering relating to the grievance with 47E(d)
1
State of New South Wales v Betfair [2009] FCAFC 160
2
Commonwealth Ombudsman and ‘S’ [2013] AICmr 31 recognises that seven FOI requests can amount to
repeatedly engaging in access actions.
47E(d)
v e / Legal Privilege Page 3
link to page 54 link to page 54
OFFICIAL: Sensitive / Legal Privilege
Abuse of process—unreasonably interfering with the operations of 47E(d)
(subparagraph 89L(1)(a)(ii) and paragraph 89L(4)(b))
19
47E(d)
repeated access actions interfere with the operations of 47E(d)
contends that the interference is unreasonable, having regard to factors mentioned in
paragraph 12.27 of the FOI Guidelines. As noted in the FOI Guidelines, these are drawn from
the relevant case law.
47E(d)
FOI resources correspond to its s47E(d)
20
47E(d) is a 47E(d)
. At 12 May 2022, 47E(d) had 47E(d)
47E(d) FOI work is one part of one 47E(d)
21
47E(d) is responsible for 47E(d)
47E(d) 47E(d)
. 47E(d)
47E(d)
has been required to assist with responding to 47E(d), s 47F access
actions, due to their comparative complexity and 47E(d) awareness of the sensitive context.
Internal reviews are undertaken by an 47E(d)
. A conservative estimate of
combined time for all officers per recent access action by s 47F, 47E(d) would be as follows:
(a)
FOI request: 17 hours
(b)
Internal review: 6.5 hours
22
I expect this is an underrepresentation of the amount of time spent, as it does not
account for some access actions requiring greater consideration than others. Also, it includes
time spent on access actions only, and does not include correspondence with s 47F, 47E(d) on
other issues.
23
At this stage, we are unable to estimate resources required to respond to an IC review
application as those processes are ongoing.
4 However, 47E(d) has found it necessary to engage
an external legal provider to assist with IC reviews as 47E(d) existing resources are
insufficient.
24
This represents a substantial and prolonged processing burden on a 47E(d)
47E(d) cannot reasonably continue to allocate the resources that 47E(d), s 47F access actions
require.
Number of access actions is disproportionate5
25
47E(d), s 47F access actions represent a disproportionate amount of 47E(d) FOI work.
During the period from 13 September 2019 to 24 June 2022 47E(d) received s4 access actions
in total (including by way of transfer from other agencies). 47E(d), s 47F req
7 uests represent
more than one-third of those access actions. 47E(d), s 47F requests are also m
E( ore resource
d)
3 FOI Guidelines, paragraph 12.27, fifth dot point
4 47E(d)
47E(d)
5 FOI Guidelines, paragraph 12.27, first dot point
47E(d)
v]
e / Legal Privilege Page 4
link to page 55 link to page 55 link to page 55
OFFICIAL: Sensitive / Legal Privilege
intensive than most requests we receive. For example, during that period 47E(d) had 4 internal
review applications and 2 IC review applications from s 47F, 47E(d) and none from any other
applicant.
Repetitive access actions give rise to substantial workload impact6
26
There is a substantial workload impact arising from multiple FOI requests for
documents to which access has already been refused. The majority of 47E(d), s 47F requests
are in effect different ways of attempting to obtain the same information. It is not within
47E(d) power to give access to this information because it is subject to legal professional
privilege held by another agency.
Diversion of resources from core business7
27
47E(d)
47E(d)
47E(d)
47E(d)
47E(d)
47E(d)
processes FOI requests adequately8
28
47E(d) seeks to address all FOI requests in an efficient and compliant way. 47E(d) has,
when appropriate given the wider context, sought to lessen the impact of 47E(d), s 47F access
actions on its operations by using:
(a)
administrative access (see 27 September 2020 and 13 July 2021 access actions
in Attachment A); and
(b)
the request consultation process (see 12 August 2021 access action in
Attachment A).
29
47E(d) has explained to s 47F, 47E(d) how the relevant material is subject to legal
professional privilege by drawing s 47F attention to case law dealing specifically with this
point.
Factors relating to s 47F, 47E(d)
30
47E(d) asks that the access actions made to 47E(d) be considered as part of the pattern of
behaviour described in the 47E(d)
47E(d)
That is:
(a)
the access actions made to 47E(d) are part of an immoderate prolongation of a
separate grievance with 47E(d) and
(b)
the access actions made to 47E(d) represent a continued pursuit of information
to which access has already been refused by 47E(d) in accordance with the
FOI Act.
6 FOI Guidelines, paragraph 12.27, second dot point
7 FOI Guidelines, paragraph 12.27, third dot point
8 FOI Guidelines, paragraph 12.27, fourth and last dot points, see also paragraph 12.11
9 FOI Guidelines, paragraph 12.27, sixth and seventh dot points
47E(d)
v e / Legal Privilege Page 5
OFFICIAL: Sensitive / Legal Privilege
Abuse of process—future requests to 47E(d)
(paragraph 89L(1)(b))
31
If s 47F, 47E(d) is declared a vexatious applicant as a result of the 47E(d)
47E(d)
access actions to 47E(d) in relation to the relevant material would become an abuse of the
process for an access action. If a declaration of the Information Commissioner prevented s 47F, 47E(d)
from making access actions to 47E(d) in relation to 47E(d)
,
permitting access actions by s 47F, 47E(d) to 47E(d) for the relevant material would allow s 47F, 47E(d)
to circumvent the declaration.
Proposed terms of determination
32
47E(d) proposes that this declaration apply to any access actions by s 47F, 47E(d) (or by
persons acting on s 22 behalf) that are made after s 47F, 47E(d) is made aware of this application
and that relate to the following matters:
(a)
47E(d)
(b)
47E(d) personnel or internal processes;
(c)
47E(d) handling of access actions by s 47F, 47E(d) including in respect of:
(i)
any application to have s 47F, 47E(d) declared a vexatious applicant; or
(ii)
correspondence with 47E(d) regarding access actions or vexatious
applicant declarations.
33
The proposed declaration should provide that for a period of 5 years 47E(d) is not
required to consider:
(a)
any requests from s 47F, 47E(d) under section 15 of the FOI Act;
(b)
any applications from s 47F, 47E(d) for an internal review of an access refusal
decision;
(c)
any requests under section 15 of the FOI Act where the request is made on
behalf of s 47F, 47E(d)
(d)
any applications for internal review of an access refusal decision by any
person where the application is made on behalf of s 47F, 47E(d)
34
The proposed terms align with the determination proposed in relation to 47E(d) If the
determination applied for by 47E(d) is made, it could be circumvented unless a similar
determination is made in relation to 47E(d)
35
47E(d) currently has no actions on hand from s 47F, 47E(d) or other persons in relation to
the relevant material. 47E(d) is aware that IC review of s actions is currently in progress.
4
36
47E(d) does not request that s 47F, 47E(d) be name7d in the published decision. s 47F, 47E(d)
s 47F
E
s 47F
47E(d)
s 22
(
d
)
37
Please contact me if you require further information.
47E(d)
v e / Legal Privilege Page 6
OFFICIAL: Sensitive / Legal Privilege
47E(d)
28 June 2022
47E(d)
v e / Legal Privilege Page 7
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From:
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To:
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Subject:
Application for Vexatious Applicant Declaration - s 47F, 47E(d) [SEC=OFFICIAL:Sensitive]
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Application for Vexatious Applicant Declaration - s 47F, 47E(d) (31.10.2022)_.pdf; 47E(d)
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Dear Commissioner,
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application seeking a vexatious applicant declaration.
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47E(d)
47E(d)
31 October 2022
Our ref: 47E(d)
Office of the Australian Information Commissioner
By email:
xxxxx@xxxx.xxx.xx
Dear Commissioner,
Application for Vexatious Applicant Declaration – s 47F, 47E(d)
1. I am writing on behalf of 47E(d) to seek that s 47F
s 47F, 47E(d) be declared a vexatious applicant
under section 89K of the
Freedom of Information Act 1982 (the FOI Act). 47E(d) seeks this
declaration on the basis that the number and subject matter of access requests made by s 47F, 47E(d)
under the FOI Act is unreasonable and involves an abuse of process.
2. I provide the following details in support of 47E(d)
application for this declaration and for the
Office of the Australian Information Commissioner’s consideration.
Background
s 47F
s 47F
s 47F
s 47F
s 47F
s 47F
s 22 s 47F
s 47F
s 47F
s 47F
47E(d)
s 47F
4. Between 1 January 2018 and 26 September 2022 s 47F, 47E(d) has made 264 access requests to
47E(d)
comprising of:
• 168 requests made under the FOI Act including reviews and Information Commissioner
Reviews (IC Reviews); and
•
s47E(d)
91 requests made under the Privacy Act.
1
link to page 61
5. Relevantly, since 1 January 2018 s 47F, 47E(d) has also made 192 complaints under the Privacy Act.
6. The volume of requests made by s 47F, 47E(d) since 1 January 2018 constitutes repeated engagement
with 47E(d) and involves an abuse of process. Specifically, s 47F, 47E(d) access requests to
47E(d)
cover similar subject matter and often target specific 47E(d) employees in an
intimidating manner.
7. 47E(d) considers that s 47F, 47E(d) access requests appear to be designed to annoy or harass
47E(d)
staff and many of the requests appear to seek that 47E(d) 47E(d)
.
Previous Notifications to s 47F, 47E(d)
8. On 10 July 2018, 47E(d) wrote to s 47F, 47E(d) and notified s 22
s
that 47E(d) intended to lodge an
application with the OAIC seeking that s 22
s
be declared a vexatious applicant under section 89K of
the FOI Act if s 22 did not limit the number of FOI requests s 22 was making. 47E(d) also invited s 47F, 47E(d)
to moderate s 22 behaviour by only lodging one FOI request at a time and by not making
requests that duplicate, or substantially duplicate earlier requests. A copy of 47E(d)
letter dated
10 July 2018 is contained at
Annexure A.
9. Despite 47E(d)
letter, s 47F, 47E(d) continued to make a further 41 access requests under the FOI
Act
1 to 47E(d) between 10 July 2018 and 9 September 2019 which constituted an abuse of
process. The requests continued to cover similar subject matter and often targeted specific
47E(d)
employees in an intimidating manner. Relevantly, during this period s 47F, 47E(d) also made
16 requests under the Privacy Act for access to personal information and made 14 privacy
complaints to 47E(d) s 47F, 47E(d) privacy requests addressed substantively the same subject
matter as s 22
s
previous FOI requests.
10. On 9 September 2019, 47E(d) again wrote to s 47F, 47E(d) advising s 22 that it considered the
number and subject matter of access requests s 22
s
continued to make under the FOI Act was
unreasonable and an abuse of process. 47E(d) again notified s 47F, 47E(d) it intended to seek that
s 22 be declared a vexatious applicant and advised that s 22 needed to cease making such requests to
47E(d)
also advised s 47F
that s 22 broader contact with 47E(d) was
unreasonable, including s 22 making Information Commissioner complaints, APP 12 requests, privacy
complaints and other complaints, which targeted specific 47E(d) employees in an intimidatory
manner and were vexatious in nature. A copy of 47E(d)
letter dated 9 September 2019 is
contained at
Annexure B.
11. Despite 47E(d)
9 September 2019 letter, s 47F, 47E(d) made a further 109 access requests under
the FOI Act to 47E(d) during the period 10 September 2019 and 16 August 2022, which related
to similar subject matter and continued to target 47E(d) employees in an intimidating manner.
Relevantly, during this period s 47F, 47E(d) also made 75 access requests under the Privacy Act and
175 privacy complaints relating to substantial y the same subject matter.
1 ‘access requests’ include requests made under s15 and s48 of the FOI Act, and requests for internal review and OAIC IC
review made under the FOI Act.
2
12. On 16 August 2022, 47E(d) again wrote to s 47F, 47E(d) to notify s 22
s
that 47E(d) intended to
make an application to the Information Commissioner seeking that s 22 be declared a vexatious
applicant under section 89K of the FOI Act because s 22
s
continued to make an excessive number of
access requests that constituted an abuse of process. 47E(d) requested that s 47F, 47E(d) cease
making requests and withdraw the 13 requests that s 22 had made since 21 July 2022 that were
largely similar to previous requests s 22 had made. A copy of 47E(d)
letter dated 16 August 2022
is contained at
Annexure C. s 47F, 47E(d) did not withdraw any of s 22 13 access requests as requested
and 47E(d) was required to process the requests.
13. On 17 August 2022, s 47F, 47E(d) wrote to 47E(d) and advised that s 22 did not agree with 47E(d)
assertions that s 22 has made an unreasonable number of access requests as contained in its 16
August 2022 letter. s 47F, 47E(d) stated that:
s 22
14. On 9 September 2022, s 47F, 47E(d) made a further complaint regarding a previous decision issued by
47E(d)
in response to an APP 12 request s 22
s
made for documents. Contained within that
complaint was a further APP 12 request for documents that was largely similar to s 22 initial APP 12
request regarding 47E(d)
decision on s 22 47E(d)
Terms of Declaration Sought
15. It is clear that s 47F, 47E(d) does not have any intention of modifying s 22 behaviour and that s 22 intends
to continue to submit access requests, privacy requests and other communications to 47E(d) that
address the same subject matter and have been addressed by 47E(d) previously.
16. Accordingly, it is apparent that the only avenue available to 47E(d) at this time, is to seek that s 47F, 47E(d)
be declared a vexatious applicant and be restrained from making further access requests to
47E(d)
on the following proposed terms:
Proposed terms of declaration
1. Under s 89K(1) of the Freedom of Information Act 1982 (Cth) (FOI Act), I declare the
Respondent to be a vexatious applicant on the basis that they have repeatedly engaged in
access actions that involve an abuse of process.
2. Subject to paragraph 4, for a period of five (5) years from the date of this declaration,
47E(d)
is not required to consider:
(a) Any request by the Respondent under the FOI Act, or
(b) Any application by the Respondent for internal review of a decision under the FOI
Act.
2 A copy of s 47F, 47E(d) email dated 17 August 2022 is contained at
Annexure D.
3
link to page 63 link to page 63
3. Subject to paragraph 4, 47E(d) is not required to consider
(a) Any application made under section 48 of the FOI Act for amendment or annotation
of personal records s 22
4. The terms in paragraphs 2 and 3 will apply unless the Respondent has first applied in writing
to the Office of the Australian Information Commissioner (OAIC) for permission to make the
request or application and written permission has been granted by the OAIC for the request
or application to be made.
5. For a period of 5 years, OAIC is not required to consider any application for permission
received within ninety (90) days of a prior application for permission having been received).
3
Grounds for declaration
6. Pursuant to section 89K of the FOI Act, the Information Commissioner may, by written submission,
declare a person to be a vexatious applicant. However, 47E(d) must first demonstrate that s 47F, 47E(d)
conduct satisfies the grounds for a vexatious applicant declaration to be made under
section 89L of the FOI Act.
7. Relevantly, section 89L of the FOI Act states:
(1) The Information Commissioner may make a vexatious applicant declaration in relation to a
person only if the Information Commissioner is satisfied of any of the following:
(a) that:
(i) the person has repeatedly engaged in access actions; and
(ii) the repeated engagement involves an abuse of the process for the
access action;
(b) a particular access action in which the person engages involves, or would involve, an
abuse of the process for that access action;
(c) a particular access action in which the person engages would be manifestly
unreasonable.
8. 47E(d) acknowledges that a declaration will not be made lightly because, as the FOI Guidelines
state, “it has the practical effect of preventing a person from exercising an important legal right
conferred by the FOI Act.” However, 47E(d) considers in this instance there is “a clear and
convincing need for a declaration”.
4
3 For ease, a separate copy of the proposed terms of declaration is contained at
Annexure E for the Information
Commissioner’s consideration.
4 FOI Guidelines [12.7].
4
9. Accordingly, the grounds for declaration that 47E(d) consider are established in these
circumstances and upon which it seeks to rely for this application are as follows:
• s 47F, 47E(d) has repeatedly engaged in access actions (s 89L(1)(a)(i)) and
• the repeated engagement involves an abuse for process for the access action (s 89L(1)(a)(ii)),
namely:
- harassment and intimidation of 47E(d) staff (s 89L(4)(a))
- unreasonable interference with 47E(d)
operations (s 89L(4)(b)).
Each of these issues are addressed in turn below.
Has s 47F, 47E(d)
repeatedly engaged in access actions with 47E(d)
10. Section 89L(2) of the FOI Act prescribes that:
(2) A person engages in an access action if the person does any of the fol owing:
(a) makes a request;
(b) makes an application under section 48;
(c) makes an application for internal review;
(d) makes an IC review application.
11. Since 1 January 2018, s 47F, 47E(d) has engaged in a total of 168 separate ‘access actions’ with
47E(d)
under the FOI Act, comprising of the following:
Type of access action
Number of access actions
FOI request (including applications under
121
section 48 for amendment)
Application for internal review
30
Application for Information Commissioner
17
Review
*Table 1.
12. Further details of each of s 47F, 47E(d) access actions can also be found in the spreadsheet contained
at
Annexure F. This spreadsheet includes details of the type, date, and nature of each of s 47F, 47E(d)
access requests.
13. Relevantly, section 89L(1)(a)(i) indicates that a person must have ‘
repeatedly’ engaged in access
actions and paragraphs 12.16 to 12.17 of the FOI Guidelines provide the following:
5
link to page 65 link to page 65
The term ‘repeatedly’ is not defined in the FOI Act and can be interpreted within its ordinary
meaning: 'done, made or said again and again'.
There is no fixed number of access actions required to establish a pattern of repeated requests.
Whether such a pattern exists wil depend in part on the nature of the abuse of process that is
said to be involved. For example, if it is asserted that a person is repeating a request that has
earlier been processed and decided by an agency, or is harassing agency employees, a small
number of requests may establish a pattern. On the other hand, if it is asserted that a person has
repeatedly made different requests that in combination unreasonably interfere with an agency’s
operations, a higher number of requests may be required to establish a pattern of repeated
requests.5
14. Since 1 January 2018, s 47F, 47E(d) has engaged in a total of 168 access actions under the FOI Act in
relation to 47E(d) Many of those access actions are requests concerning substantially the same
subject matter that 47E(d) has addressed with s 47F, 47E(d) previously, as detailed in
Annexure F. Despite 47E(d)
many requests for s 47F, 47E(d) to amend s 22
s
behaviour, s 22 has continued to
engage in access actions with 47E(d) on a repeated basis.
15. On this basis, 47E(d) asserts that s 47F, 47E(d) has engaged in a continuing pattern of access actions
which amount to a repeated engagement in access actions for the purposes of section 89L(1)(a) of
the FOI Act.
Broader pattern of contact
16. It is also relevant to note that since 1 January 2018, s 47F, 47E(d) broader contact with 47E(d) has
been unreasonable
,6 as detailed in the following table:
Type of matter
Total
APP 12 and APP 1 requests
53
APP 13 requests
38
Privacy Complaints (including Information
192
Commissioner Complaints)
*Table 2
17. While 47E(d) understands that members of the public have a right to complain about an agency
and its actions, many of s 47F, 47E(d) complaints relate to substantially the same matters that
47E(d)
has previously addressed and resolved.
18. It is also relevant that many of s 47F, 47E(d) requests made under Australian Privacy Principle 12
(APP 12) appear to be used to target specific 47E(d) employees and are intimidatory given that
5 FOI Guidelines [12.16] – [12.17] (footnotes omitted);
Services Australia and 'WE' (Freedom of information) [2020] AICmr 62
(14 December 2020) at [26] quoting FOI Guidelines.
6 FOI Guidelines [12.14].
6
link to page 66 link to page 66 link to page 66
these requests are made fol owing determinations where s 22
s
has been unsatisfied with the
employees’ actions.
19. Further details of s 47F, 47E(d) broader unreasonable contact with 47E(d) are contained in the
spreadsheet at
Annexure F.
Has there been an abuse of process?
20. To establish if the declaration sought ought to be made under subsection 89L(1)(a), the Information
Commissioner must also be satisfied that the repeated engagement involves an abuse of process.
21. Relevantly, subsection 89L(4) of the FOI Act states that ‘abuse of the process for an access action’
includes, but is not limited to:
(a) harassing or intimidating an individual or an employee of an agency
(b) unreasonably interfering with the operations of an agency
…
Has s 47F, 47E(d)
has engaged in access actions that have unreasonably interfered with 47E(d)
operations?
22. The FOI Guidelines explain that the provisions of the FOI Act seek to balance the right of access to
government-held documents while ensuring that access requests do not interfere unreasonably
with agency operations.
7 The FOI Guidelines at paragraph 12.27 provide examples of the factors
that may be considered in deciding if there is a pattern of repeated access actions that unreasonably
interfere with an agency’s operations.
23. 47E(d) submits that the following factors as outlined in the FOI Guidelines
8 should be considered
by the Information Commissioner in in deciding if s 47F, 47E(d) has engaged in a pattern of repeated
access actions that unreasonably interfere with an 47E(d)
operations.
Whether a high number of access actions has led to a substantial or prolonged processing burden on
the agency or a burden that is excessive and disproportionate to a reasonable exercise by an applicant
of the right to engage in access actions
24. Relevantly, in balancing a person’s right to engage in access actions under the FOI Act and the
repetitive nature of their access actions, it is appropriate to consider Senior Member Manetta’s
comments in relation to a person’s requests for amendment in
Francis and Australian Information
Commissioner (Freedom of information) [2015] AATA 936:
9
7
Services Australia and 'WE' (Freedom of information) [2020] AICmr 62 (14 December 2020) [34].
8 The Guidelines note that the application of the factors is discussed in
Australian Securities and Investments Commission and
Sweeney [2013] AICmr 62 [18]-[20], [30]-[49];
Australian Prudential Regulation Authority and Sweeney [2013] AICmr 63 [31]-
[41]; and Re
Sweeney and Australian Securities and Investments Commission [63]-[78]. See also
Davies and Department of the
Prime Minister and Cabinet [2013] AICmr 10 concerning factors relevant in deciding if a practical refusal reason exists for
refusing a request.
9 Referred to i
n Services Australia and 'WE' (Freedom of information) [2020] AICmr 62 (14 December 2020) [38].
7
link to page 67 link to page 67
Having received multiple rejections, an applicant who persists must, at some point, become
“vexatious”. I do not say that point is necessarily reached as early as the second application, but
I am satisfied that it was reached here on Mr Francis’s fifth application if not earlier. The
statutory scheme under the FOI Act includes rights of review that are available to be pursued
and, in the normal course, should be pursued if an applicant is dissatisfied with a departmental
response. The scheme envisages an application, a departmental response, and the exercise of
review rights; but it does not authorise multiple applications on the same facts.
It might he (sic) argued that an applicant could properly elect to reapply to an agency, which is
an administrative body, rather than invoke the statutory review process because an agency may
be persuaded to change its mind. Even on that assumption, however, a point must come where
an applicant’s persistence, in the absence of new information, becomes “vexatious” and
“oppressive” because all that is sought is a different outcome from the same statutory process
on the same facts. Mr Francis has now applied five times to the Department and, in addition, has
appealed adverse prior departmental decisions to the Tribunal on four occasions, with one
appeal to the Federal Court.10
25. Further, the Acting Australian Information Commissioner,
Elizabeth Hampton stated in her decision
of
Services Australia and 'WE' (Freedom of information)11 that:
39. In its application [for a vexatious applicant declaration], Services Australia submits that the
respondent’s FOI requests are excessive and disproportionate to a reasonable exercise of
their rights under the FOI Act, because of the number of access requests and the frequent,
repetitious and overlapping nature of their requests.
40. Between 19 March 2018 and 8 April 2020, the respondent has engaged in 102 access actions
with Services Australia directly. In the same period the respondent has requested three IC reviews[8]. Since 8 April 2020 the respondent has engaged in a further 11 access actions. I am
satisfied that the nature of the requests relate to the four categories discussed at [28].
41. Based on the information before me, I am satisfied that the nature of the respondent’s access
actions on Services Australia’s FOI administration would have a substantial workload impact
on Services Australia’s FOI administration.
26. 47E(d) submits that s 47F, 47E(d) has made a total of 168 access actions under the FOI Act to
47E(d)
during the period of 1 January 2018 to 26 September 2022. s 47F, 47E(d) high number of
access actions have led to a prolonged processing burden on the FOI administration in 47E(d)
that is excessive and disproportionate to a reasonable exercise of the right to engage in requests.
This is because of the sheer number of access requests submitted by s 47F, 47E(d) and the frequent,
repetitious, and overlapping nature of the requests.
27. s 47F, 47E(d) requests are often duplicative or substantially similar to previous requests. For
example, s 47F, 47E(d) submits FOI requests even where 47E(d) has previously granted ful access
10
Francis and Australian Information Commissioner (Freedom of information) [2015] AATA 936 [42] – [43].
11 [2020] AICmr 62 (14 December 2020).
8
link to page 68 link to page 68
to the relevant documents sought or where it should be reasonably known to s 47F, 47E(d) that the
documents do not exist. Examples of s 47F, 47E(d) repetitive and overlapping access requests are
contained at
Annexure G.
Whether a substantial workload impact on FOI administration in 47E(d)
has arisen from the nature
of s 47F, 47E(d)
access actions
28. The Guidelines provide at paragraph 12.27, the fol owing examples of the nature of access actions
that may create a substantial workload impact:
… multiple FOI requests that are poorly-framed or for documents that do not exist, requests for
documents that have already been provided or to which access was refused, or requests that are
difficult to discern and distinguish from other complaints a person has against the agency.
29. 47E(d) further submits, that a substantial workload impact on FOI administration in 47E(d) has
arisen from the nature of s 47F, 47E(d) requests, which are often repetitive, lengthy, and poorly
framed.
s 47F
s 22
s 47F
47E(d)
s 47F
s 47F
The nature of s 47F, 47E(d) requests requires FOI officers to take grater time than
would reasonably be anticipated to determine the scope of s 47F, 47E(d) requests. Examples of s 47F, 47E(d)
lengthy and poorly framed access requests are contained at
Annexure H.
30. 47E(d) submits that it has been required to dedicate a considerable amount of resources to
processing s 47F, 47E(d) requests for a prolonged period. These requests have had a significant
impact on the operational work of 47E(d) During the past four financial years from 1 July 2018
to 30 June 2022, 47E(d) received a total of 839 access requests made under section 15 of the FOI
Act. During that period, s 47F, 47E(d) made a total of 107 access requests under section 15 of the FOI
Act. s 47F, 47E(d) requests represented 12.75% of all FOI section 15 access request received by
47E(d)
during the past four financial years
12. The high number of s 47F, 47E(d) requests has led to
a prolonged processing burden that is excessive and disproportionate to a reasonable exercise of
the right to engage in requests. This is compounded by the fact that s 47F, 47E(d) requests are often
for the same documents or subject matter that s 22 has previously received access to.
Whether the person has cooperated reasonably with 47E(d)
to enable efficient FOI processing
31. In deciding whether there is a pattern of repeated access actions that unreasonably interfere with
an agency’s operations, it is relevant to consider whether the person has cooperated reasonably
with the agency to enable efficient FOI processing. Including, whether the person’s access actions
portray an immoderate prolongation of a separate grievance the person has against the agency, or
the continued pursuit of a matter that has already been settled through proceedings in another
dispute resolution forum.
13
12 47E(d)
47E(d)
13
FOI Guidelines [12.27].
9
link to page 69 link to page 69
32. Relevantly, in
Australian Securities and Investments Commission and Sweeney [2013] AICmr 62,
former Information Commissioner Professor McMillan stated:
Caution is needed in evaluating the public interest dimension of a person’s FOI requests. Even so,
the inescapable impression in Mr Sweeney’s case is that many of his requests are aimed at re-
agitating a grievance of long-standing that has been acknowledged and investigated by ASIC
and other agencies, albeit not to his satisfaction. It is inappropriate that the FOI Act should
become the platform to support the immoderate prolongation of a personal grievance. The
impact and inconvenience of Mr Sweeney’s requests upon ASIC operations is disproportionate to
his campaign for ‘justice’ in relation to his own affairs and more widely.14
33. In
Morris and Australian Information Commissioner (Freedom of information) [2017] AATA 363,
Senior Member Walsh considered that a number of Ms Morris’ access actions re-agitated matters
already decided or actioned without offering any reasonable explanation or new evidence and that
Ms Morris’s pattern of access actions could be characterised as manifestly unreasonable by their
unnecessary and unjustified repetition and properly label ed as “vexatious”.
15
34. s 47F, 47E(d) access actions are part of an immoderate prolongation s 22
s 47F
47E(d)
47E(d)
s 47F
s 47F
s 47F
47E(d)
35. As established above, s 47F, 47E(d) has repeatedly made the same or very similar requests designed
to reagitate s 22
. s 47F, 47E(d) has repeatedly made requests for documents
that 47E(d) has previously provided to s 22 or that 47E(d) has advised cannot be found or do
not exist. Accordingly, most of s 47F, 47E(d) access actions amount to a continued pursuit of a matter
that has already been settled through proceedings in another forum.
36. Further, as outlined above 47E(d) has written to s 47F, 47E(d) formally on three separate occasions
to request that s 22
s
cease making an excessive unreasonable number of access requests. Despite
47E(d)
letters, s 47F, 47E(d) has continued to issue a high number of access requests and broader
communication, including complaints and APP 12 requests to 47E(d)
37. Most recently, on 17 August 2022 s 47F, 47E(d) responded to 47E(d)
letter of 16 August 2022
indicating that s 22 disagrees with 47E(d)
assertions that s 22
s
has made an unreasonable number
of access requests. Among other things, s 47F, 47E(d) denied that s 22 has ever made a request under
section 48 of the FOI Act. Evidence of section 48 requests s 47F, 47E(d) has made to 47E(d) is
contained at
Annexure I. s 47F, 47E(d) has also claimed in s 22 email that s 22 has not requested
14
Australian Securities and Investments Commission and Sweeney [2013] AICmr 62 [44]. This decision was later affirmed by
the Administrative Appeals Tribunal in
Sweeney and Australian Information Commissioner and Australian Prudential
Regulation Authority (Joined Party) [2014] AATA 539. This decision was referenced in
Services Australia and 'WE' (Freedom of
information) [2020] AICmr 62 (14 December 2020) [48].
15
Morris and Australian Information Commissioner (Freedom of information) [2017] AATA 363 [40] – [41]; as referenced in
Services Australia and 'WE' (Freedom of information) [2020] AICmr 62 (14 December 2020) [49].
10
link to page 70 link to page 70 link to page 70
documents that s 22 has previously received and where there may be an overlap any such prior
documents have been removed from scope. This is not correct, evidence of the significant number
of repetitive requests s 47F, 47E(d) has made are detailed in the spreadsheet at
Annexure F.
Whether 47E(d)
has used other provisions under the FOI Act to lessen the impact of the person’s
access actions on its operations
38. To determine whether s 47F, 47E(d) has engaged in a pattern of repeated access actions that
unreasonably interfere with 47E(d)
operations, it is relevant to consider whether 47E(d) has
used other provisions under the FOI Act to lessen the impact of s 22 access actions on its
operations.
16
39. 47E(d) submits that it has used other provisions under the FOI Act in attempts to lessen the
impact of s 47F, 47E(d) repeated access actions on its operations. However, on several occasions, s 47F, 47E(d)
has not cooperated reasonably with the agency to enable efficient FOI processing under
these other FOI Act provisions.
40. Examples of the steps taken by 47E(d) to reduce the impact of s 47F, 47E(d) access actions on its
operations include the fol owing:
• 47E(d) has provided documents that s 47F, 47E(d) has requested under section 15 of the FOI
Act to s 22 by way of administrative release. Examples of where 47E(d) has assisted s 47F, 47E(d)
in this matter, include:
o FOI request reference 47E(d) 47E(d) located 7 documents (430 pages) that fell
within the scope of s 47F, 47E(d) FOI request. 47E(d) decided to grant s 47F, 47E(d) full
access to 4 documents (425 pages) under administrative arrangements and full access
to 1 document (3 pages) under the FOI, part access to 1 document (1 page) under the
FOI Act and refuse access to part of the request under s24A of the FOI Act.
17
o FOI request reference 47E(d) On 22 April 2022, s 47F, 47E(d) made a request to
47E(d)
for information under section 15 of the FOI Act. On 4 May 2020, 47E(d)
acknowledged s 47F, 47E(d) request and advised that it has administrate access
arrangements for the release of certain documents without the need for a formal FOI
request. 47E(d) identified three documents (18 pages) that related to s 47F, 47E(d)
request and decided to provide s 47F, 47E(d) access to those documents through the
administrate access arrangements on 22 May 2020. s 47F, 47E(d) FOI request was then
taken as withdrawn.
18
• 47E(d) has contacted s 47F, 47E(d) informally to request that s 22 consider revising the scope of
many of s 22
s
access requests. However, s 47F, 47E(d) has often provided unhelpful responses to
47E(d)
requests that s 22 consider revising or clarify the scope of an access request, which
16
FOI Guidelines [12.27].
17 A copy of 47E(d) decision dated 7 August 2019 in which 47E(d) released documents to s 47F, 47E(d) by way of
administrative release is contained at
Annexure J.
18 A copy of 47E(d) decision letter dated 22 May 2020 providing administrate access to s 47F, 47E(d) is contained at
Annexure K.
11
link to page 71
has led 47E(d) to consult formally with s 47F, 47E(d) under s24AB of the FOI Act and has required
47E(d)
staff to spend additional time clarifying s 47F, 47E(d) requests. s 47F, 47E(d) has also
previously refused to revise scope of s 22 access requests when contacted. Examples of instances
where s 47F, 47E(d) has been unhelpful or refused to work with 47E(d) to revise the scope of
s 22 request are contained at
Annexure L.
• 47E(d) has issued section 24AB notifications to s 47F, 47E(d) to assist s 22 to revise the scope of
s 22
s
access requests formally. However, s 47F, 47E(d) has on many occasions, refused to revise the
scope of those request following s 22 receipt of 47E(d)
notification.
s47E(d)
s 47F, 47E(d)
47E(d)
s 47F, 47E(d)
47E(d)
s 22
47E(d)
s 47F, 47E(d)
s 22
s 22
s
s 47F, 47E(d)
47E(d)
s 47F
47E(d)
s 47F, 47E(d)
47E(d)
• 47E(d) has previously made requests for an extension of time from s 47F, 47E(d) to enable to
agency to respond to s 22 requests. However, s 47F, 47E(d) has often unreasonably refused to grant
the extension. In these instances, 47E(d) was required to apply to the OAIC for the required
extension of time, which further impacted the FOI team’s resources.
For example, on 28 November 2018, s 47F, 47E(d) made a FOI request (47E(d)
) for
documents which was very similar to several previous requests submitted by s 47F, 47E(d)
47E(d)
requested an extension of time from s 47F, 47E(d) for the agency to provide a response
to this request due to the occurrence of Christmas public holidays. s 47F, 47E(d) refused to grant
the extension. 47E(d) was then required to seek an extension from the OAIC, which was
granted
.20
41. Additionally, s 47F, 47E(d) has had access to 47E(d)
47E(d)
On 1 May 2019
47E(d)
provided s 47F, 47E(d) with 419 pages following s 47F request for s 22
s 47F
42. Accordingly, 47E(d) submits that s 47F, 47E(d) actions have led to a substantial impost on
47E(d)
FOI processing and administration that is excessive and disproportionate to a
reasonable exercise by s 47F, 47E(d) of s 22 right to engage in access actions under the FOI Act. 47E(d), s 47F
19 A copy of s 47F, 47E(d) original FOI request dated 12 April 2018, and 47E(d) decision letter detailing the attempts made
to assist s 47F, 47E(d) to revise the scope of s 22 request, s 47F, 47E(d) refusal to assist 47E(d) and s 22 further requests for
information made during the consultation process are contained at
Annexure M.
20 Further details of this request are contained in the spreadsheet at
Annexure F.
12
link to page 72
s47E(d) access actions are therefore an abuse of process because they unreasonably interfere
with 47E(d)
operations.
Has s 47F, 47E(d)
has engaged in access actions that have harassed or intimidated employees at
47E(d)
43. The FOI Guidelines state:
12.22 The terms ‘harassing’ and ‘intimidating’ are not defined in the FOI Act and therefore have
their ordinary meaning. To ‘harass’ a person is to disturb them persistently or torment them; and
to ‘intimidate’ a person is to use fear to force or deter the actions of the person, or to overawe
them.
12.23 The occurrence of harassment or intimidation must be approached objectively. The issue
to be resolved is whether a person has engaged in behaviour that could reasonably be expected
on at least some occasions to have the effect of, for example, tormenting, threatening or
disturbing agency employees.
…
44. The FOI Guidelines at paragraph 12.24, further provide that harassment and intimidation may be
established by a variety of circumstances including:
• requests that are designed to intimidate agency staff and force them to capitulate on another
issue
• requests of a repetitive nature that are apparently made with the intention of annoying or
harassing agency staff.
45. 47E(d) submits that s 47F, 47E(d) repeated access actions amount to an abuse of process on the
basis that the actions were harassing or intimidating to individual employees of 47E(d)
Specifically, the repetitive nature and sheer volume of s 47F, 47E(d) access actions as detailed above
appear to be made with the intention of annoying or harassing 47E(d) staff. s 47F, 47E(d)
repetitive requests appear to be designed to intimidate 47E(d) staff and drive capitulation on s 22
46. As stated above, 47E(d) wrote to s 47F, 47E(d) on 10 July 2018 and 9 September 2019 and most
recently on 16 August 2022 to advise s 22 that 47E(d) considers the volume and nature of s 22
continuous access actions have had a detrimental impact on 47E(d)
resources and operations.
47E(d)
also addressed s 47F, 47E(d) unreasonable broader contact with 47E(d) as highlighted
above, in which s 47F, 47E(d) has repeatedly made complaints and requests under Australian Privacy
Principal 12 and 13 regarding similar subject matter and identified specific 47E(d) st
aff.21 Despite
47E(d)
letters, s 47F, 47E(d) continued to make further excessive access requests and continued
to unreasonably target 47E(d) staff.
21 The spreadsheet at
Annexure F identifies privacy actions made by s 47F, 47E(d) where s 22 has named 47E(d) staff.
13
link to page 73 link to page 73
47. Many of s 47F, 47E(d) access requests target specific 47E(d) employees in an intimidating manner.
For example, in circumstances where s 47F, 47E(d) has not been pleased with a decision made in
respect of an access request that s 22 has previously made, s 47F, 47E(d) has proceeded to submit
further access requests and make privacy complaints that specifically name and target 47E(d)
employees who have been involved with s 22
s
matters. Of the 168 access actions that s 47F, 47E(d) has
made to 47E(d) since 1 January 2018, s 22
s
has specifically named and targeted 47E(d) employees
in approximately 70 of those access actions.
22
48. More specifically, an example of s 47F, 47E(d) unreasonable and intimidatory behaviour includes s 22
repetitive access requests targeting 47E(d) employee, 47E(d)
who was involved with
s 47F, 47E(d) s 22
. s 47F, 47E(d) has made at least 21 FOI access requests since 29 June 2018
that specifically name 47E(d)
. s 47F, 47E(d) has also made repeated baseless accusations against
47E(d)
including that s 47F 47E(d)
s 47F, 47E(d)
s47E(d) s 47F s47E(d) Despite 47E(d) issuing a decision in response to s 47F, 47E(d) access request
47E(d)
, s 47F, 47E(d) continued to submit multiple access
requests, including review requests and requests under the Privacy Act, seeking the al eged
recording and records from all work related and personal electronic devices accessed by the
employee, including records from their personal mobile phone and computer. Examples of s 47F, 47E(d)
repeated unreasonable access actions targeting 47E(d)
and 47E(d)
responses are
contained in
Annexure N.
Other relevant considerations
The OAIC FOI Guidelines also provide that in determining if a vexatious applicant declaration should be
made, the Information Commissioner may consider an agency’s FOI administration, either generally or
in relation to the person whose actions are under consideration. In particular, the Commissioner may
consider whether:
• deficiencies in agency administration impaired its processing of the person’s requests
• actions taken by the agency contributed to or might explain the person’s access actions
• the agency consulted with the person about their access actions before applying to the
Commissioner for a declaration
• deficiencies in agency FOI administration should be addressed by the agency before further
consideration is given to making a declaration.
23
47E(d)
does not considered that its FOI administration has impaired the processing of s 47F, 47E(d)
access actions at all and certainly not to an extent that would warrant s 47F, 47E(d) making such an
unreasonable volume of access actions. Nor have the actions taken by 47E(d) contributed to or
provided explanation for s 47F, 47E(d) repeated abuse of process in submitting an excessive volume of
access requests to harass and intimidate 47E(d) staff. Despite 47E(d)
many attempts to consult
with s 47F, 47E(d) about s 22 unreasonable access actions, s 47F, 47E(d) has failed to amend s 22 behaviour and
22 The spreadsheet at
Annexure F identifies each FOI access action where s 47F, 47E(d) has specifical y named or requested the
details of 47E(d) staff.
23
FOI Guidelines [12.13].
14
continued to repeatedly engage in access actions involving an abuse of process causing an unreasonable
interference with 47E(d)
operations.
Accordingly, for the reasons outlined above 47E(d) submits that s 47F, 47E(d) conduct satisfies the
grounds for a vexatious applicant declaration to be made under section 89L of the FOI Act. 47E(d)
seeks that the Information Commission declare s 47F, 47E(d) a vexatious applicant in accordance with
proposed declaration terms at
Annexure E.
If you have any questions in relation to this matter please do not hesitate to contact me by email to
47E(d)
47E(d)
Yours sincerely,
47E(d)
47E(d)
15
Index of Annexures
s47E(d)
47E(d)
s 47F, 47E(d)
47E(d)
47E(d)
s 47F, 47E(d)
47E(d)
47E(d)
s 47F, 47E(d)
47E(d)
s 47F, 47E(d)
47E(d)
47E(d)
s 47F, 47E(d)
s 47F, 47E(d)
47E(d)
s 47F, 47E(d)
s 47F, 47E(d)
47E(d)
s 47F, 47E(d)
s 47F, 47E(d)
47E(d)
47E(d)
s 47F, 47E(d)
47E(d)
s 47F, 47E(d)
47E(d)
s 47F, 47E(d)
s 47F, 47E(d)
s 47F, 47E(d)
47E(d)
s 22
s 47F, 47E(d)
47E(d)
s 47F, 47E(d)
47E(d)
16
s47E(d)
s 47F, 47E(d)
47E(d)
s 22
s
47E(d)
47E(d)
s 47F, 47E(d)
s 22
s 47F, 47E(d)
47E(d)
s 22
s
s 47F, 47E(d)
47E(d)
47E(d)
s 47F, 47E(d)
47E(d)
s 47F, 47E(d)
47E(d)
s 22
s 47F, 47E(d)
47E(d)
17
OAIC - FOI DR
From:
47E(d)
Sent:
Wednesday, 8 February 2023 3:59 PM
To:
OAIC - FOI DR
Subject:
s 47F, 47E(d) - Application to be declared a vexatious applicant [SEC=OFFICIAL:Sensitive]
Attachments:
Quick start guide - SecureDoc - Guests.pdf
CAUTION: This email originated from outside of the organisation. Do not click links or open attachments unless you
recognise the sender and know the content is safe.
OFFICIAL: Sensitive
Dear Information Commissioner
47E(d) would like to make an application to declare the following person to be a vexatious applicant under
section 89K(1) of the
Freedom of Information Act 1982 (
FOI Act):
Applicant s
47F, 47E(d)
Applicant’s contact details
s 22
We have uploaded our application and relevant documentation to SecureDoc, which can be accessed
here. To access the documents, you will be asked to set a password for your guest account. A
Quick start
guide has been attached with this email, which outlines the steps to set your password and sign in for the
first time.
If you have any difficulties accessing the documents on SecureDoc, please let us know.
Kind regards
47E(d)
s 47F
1
IMPORTANT NOTICE:
This e-mail is intended solely for the person or organisation to whom it is addressed, and may contain
secret, confidential or legally privileged information.
If you have received this e-mail in error or are aware that you are not authorised to have it, you MUST
NOT use or copy it, or disclose its contents to any person. If you do any of these things, you may be
sued or prosecuted.
If you have received this e-mail in error, please contact the sender immediately.
2
s47E(d)
s47E(d)
For the 16 access requests that are in respect of 47E(d)
access was sought to copies of documents that would ordinarily be
protected under 47E(d) secrecy obligations 47E(d)
47E(d)
47E(d)
unless the entity consented to the information being
disclosed or the documents were otherwise publicly available.
Impact on 47E(d) operations
47E(d) has aimed to balance the rights of applicants to access documents held by 47E(d)
against its statutory purposes for which it was established. It is 47E(d) initial view that your
repeated access requests meet the abuse of process threshold under section 89K(1), as the
access requests are unreasonably interfering with 47E(d) operations.
47E(d) operations are being substantially and unreasonably interfered with as a result of it
having to respond to 19 initial access requests made directly to 47E(d) 47E(d)
47E(d)
In assessing whether the receipt of access requests generally would have an unreasonable
interference on its operations, 47E(d) bases the allocation of its limited resources for
Freedom of Information (FOI) on its past number of access requests. Given the size of
47E(d) and the extent of the resources available for it to deal with FOI, 47E(d) allocation of
resources to deal with FOI is more than reasonable in the circumstances.
In 47E(d) view, the frequent and repeated access requests are an unreasonable
interference with the 47E(d)
47E(d)
These access
requests are interfering with the critical role of 47E(d)
47E(d) intention to make an application to the IC
For the reasons outlined in this letter, 47E(d) has formed the preliminary view that is
appropriate to seek a declaration from the IC that you are a vexatious applicant and that the
declaration includes a condition that you may not make an access request or internal review
application to 47E(d) unless the IC has granted you permission to do so.
Next steps
Should you wish to provide a response to the matters outlined in this letter, you are required
to do so by no later than 5pm (AEST) on Monday, 24 October 2022. Please provide any
response in writing via email to
47E(d)
47E(d)
or return mail to:
47E(d)
47E(d)
47E(d)
2
47E(d)
In the event that you do not respond by this time, 47E(d) may proceed to apply to the IC
without further notice to you.
Yours sincerely,
FOI Officer
47E(d)
3
47E(d)
s 47F, 47E(d)
47E(d)
47E(d) 47E(d)
s 47Fs 47F
47E(d)
s s 47F
47F
47E(d)
s 47F, 47E(d),
47E(d)
s 47F
47E(d)
s 47F
s 47F
47E(d)
s 47F
s 47F
s 47F
s 47F
47E(d)
s 47F
47E(d)
47E(d)
47E(d)
s 47F, 47E(d),
47E(d)
s 47F
47E(d)
s 47F
s 47F
47E(d)
s 47F
s 47F
47E(d)
47E(d)
s 47F
s 47F
s 47F
47E(d)
s 47F
47E(d)
47E(d) s 47F
s 47F
s 47F
47E(d)
s 47F
47E(d)
47E(d)
s 47F
47E(d)
47E(d)
s 47F
s 47F
s 47F
47E(d)
47E(d)
s 47F
s 47F
47E(d)
47E(d)
s 47F, 47E(d),
s 47F
47E(d)
s 47F
47E(d)
47E(d)
47E(d)
47E(d)
47E(d)
47E(d)
47E(d)47E(d)
47E(d)
47E(d)
s 47F
s 47F
s 47F
s 47F
s 47Fs 47F
s 47F
s 47F
s 47F
s 47F
s 47F
s 47F
s 47F
47E(d)
s 47F, 47E(d),
s 47F
s 47F
s 47F
s 47F
s 47F
47E(d)
s 47F
47E(d)
s 47F
s 47F
s 47F
47E(d)
s 47F
47E(d)
s 47F
47E(d)
s 47F
s 47F
47E(d)
47E(d)
s 47F, 47E(d),
s 47F
47E(d)
47E(d)
s 47F
47E(d)
s 47F
47E(d)
s 47F
s 47F
s 47F
s 47F
s 47F
s 47F
47E(d)
47E(d)
s 47F
s 47F s 47F47E(d)
s 47F
47E(d)
47E(d)
s 47F, 47E(d),
s 47F
47E(d)
s 47F
47E(d)
47E(d)
47E(d)
s 47F
47E(d)
s 47F
47E(d)
s 47F
s 47F
s 47F
s 47F
47E(d)
s 47F
47E(d)
s 47F
47E(d)
s 47F
s 47F
s 47F
47E(d)
s 47F
s 47F
47E(d)
47E(d)
s 47F
47E(d), s 47F
47E(d)
s 47F
47E(d)
s 47F
47E(d)
47E(d)
s 47F
47E(d)
47E(d)
s 47F
47E(d)
s 47F, 47E(d),
47E(d)
s 47F
s 47F
47E(d)
s 47F
47E(d)
s 47F
47E(d)
s 47F
47E(d)
s 47F
s 47F
s 47F
s 47F
47E(d)
47E(d)
s 47F
47E(d)
s 47F
s 47F
s 47F
s 47F
47E(d)
47E(d)
s 47F
47E(d)
s 47F
47E(d)
s 47F, 47E(d),
47E(d)
s 47F
47E(d)
s 47F
s 47F
47E(d)
s 47F
47E(d)
s 47F
s 47F
s 47F
s 47F
47E(d)
47E(d)
47E(d)
s 47F
47E(d)
s 47F
s 47F
47E(d)
s 47F
s 47F
s 47F
s 47F
s 47F
47E(d)
s 47F
s 47F
47E(d)
47E(d)
s 47F
s 47F
47E(d)
47E(d)
s 47F, 47E(d),
47E(d)
47E(d)
s 47F
s 47F
s 47F
s 47F
s 47F
s 47F
s 47F
47E(d) s 47F
s 47F
s 47F
s 47F
47E(d)
s 47F
s 47F
s 47F
s 47F
s 47F
s 47F
s 47F
s 47F
s 47F
47E(d)
s 47F, 47E(d),
47E(d)
s 47F
s 47F
s 47F
s 47F
47E(d)
s 47Fs 47F
s 47F
s 47F
s 47F
s 47F
s 47F
s 47F
47E(d)
47E(d)
s 47F
s 47F
47E(d)
s 47F
s 47F
s 47F
s 47F
s 47F
s 47F
47E(d) 47E(d)
47E(d)
s 47F
47E(d)
47E(d)
s 47F, 47E(d),
47E(d)
47E(d)
s 47F
47E(d)
47E(d)
s 47F
47E(d)
s 47F
s 47F
s 47F
47E(d) 47E(d)
s 47F
47E(d) s 47F
47E(d)
47E(d)
s 47F
47E(d)
47E(d)
s 47F
47E(d)
47E(d)
s 47F
47E(d), s 47F
s 47F
s 47F
s 47F
47E(d)
s 47F
s 47F
s 47F
s 47F
s 47F
s 47F
47E(d)
s 47F
47E(d)
47E(d)
47E(d)
47E(d)
47E(d)
s 47F
47E(d)
47E(d)
s 47F, 47E(d),
47E(d)
47E(d)
47E(d)
47E(d)
47E(d)
s 47F
s 47F
s 47F
47E(d)
47E(d)
s 47F
s 47F
47E(d)
s 47F
47E(d)
s 47F
47E(d)
47E(d)
s 47F
47E(d)
s 47F, 47E(d),
s 47F
47E(d)
s 47F s 47F
47E(d)
47E(d)
s 47F
s 47F
s 47F
s 47F
47E(d)
s 47F
s 47F
s 47F
s 47F
s 47F
s 47F
s 47F
s 47F
s 47F
s 47F
s 47F
s 47F
s 47F
s 47F
s 47F
s 47F
s 47F
s 47F
47E(d)
s 47F
47E(d)
47E(d)
s 47F
s 47F
s 47F
s 47F
47E(d)
s 47F
47E(d)
s 47F, 47E(d),
s 47F
47E(d)
s 47F
s 47F
s 47F
47E(d)
s 47F
47E(d)
s 47F
47E(d)
47E(d)
s 47F
47E(d)
s 47F
s 47F
47E(d) s 47F
47E(d)
47E(d)
47E(d)
47E(d)
47E(d)
s 47F
47E(d)
s 47F
47E(d)
47E(d)
47E(d)
s 47F
47E(d)
47E(d)
47E(d)
