Principal Registry
Our ref:
2020/0144; 2020/0145;
2020/0146; and 2020/0147
Your ref:
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx;
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx;
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx;
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
24 December 2020
Mr John Smith
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Mr Smith
Re: Your Freedom of Information requests – 2020/0144; 2020/0145; 2020/0146 and
2020/0147
I am writing to you about the above requests made under the
Freedom of Information Act
1982 (FOI Act), received on 14 December 2020.
The Administrative Appeals Tribunal (AAT) is considering making an application to the
Information Commissioner for a declaration under section 89K of the FOI Act that the AAT
not be required to process these requests, or any future requests that you may make in
relation to labour hire, without the permission of the Commissioner.
The AAT places importance on its responsibilities under the FOI Act and does not consider
making such an application lightly. However, we note the following:
• The new requests no’s. 2020/0144, 2020/0145, 2020/0146 and 2020/0147 are
identical to 4 of the requests made by you on 17 February 2020, which were
combined by the AAT into request no.2020/0016.
• Request no.2020/0016 concerned information about procurement of labour hire
services.
• On 18 March 2020 the AAT sent you a request consultation letter under section
24AB of the FOI Act in relation to request no. 2020/0016.
• On 18 May 2020 the AAT sent you a notice of its decision to impose a processing
charge in relation to request no. 2020/0016.
Level 6, 83 Clarence St
T: 1800 228 333 or 02 9276 5000
National Relay Service
SYDNEY NSW 2000
F: 02 9267 5538
www relayservice.gov.au
GPO Box 9955 Sydney NSW 2001
E: xxxxxxxxx@xxx.xxx.xx
ABN 90 680 970 626
www.aat.gov.au
• Request no. 2020/0016 was withdrawn by you on 18 May 2020.
• You subsequently made requests on the following dates for information relating to
labour hire procurement: 19 May 2020, 29 May 2020, 18 June 2020, 24 June 2020,
30 June 2020, 22 July 2020, 3 August 2020, 18 August 2020, 20 August 2020, 25
August 2020, 29 August 2020, 18 September 2020 and 3 November 2020. On
some dates you made multiple requests.
• You also made internal review requests on 17 August 2020, 8 September 2020,
28 September 2020 and 19 October 2020.
• As exemplified by the assessment of charge notice sent to you on 18 March 2020
in relation to request 2020/0016, processing these requests requires the section
of the AAT responsible for procurement to devote several hours to scoping and
retrieving what, if any, documents it holds that fall into the scope of your requests
before the FOI section can assess them. The high volume of requests has
disproportionately affected the capacity of the procurement team to perform its
usual work.
• While you have made requests about labour hire to several Australian government
agencies, it appears that no other agency has been the recipient of the high
volume of requests that you have made to the AAT.
For the purposes of section 89L of the FOI Act and based on the above, it is our view that
you have repeatedly engaged in access actions and that the requests of 14 December
2020, in combination with your previous actions, unreasonably interfere with the
operations of the AAT, including its procurement team.
It would assist the AAT in its consideration if you could advise whether you intend to
withdraw or revise the requests dated 14 December 2020. I would be grateful for your
advice by close of business 4 January 2020 by email to xxx@xxx.xxx.xx.
Please note that the AAT may also consider whether a practical refusal reason exists,
whether or to combine the requests and/or whether or not a charge wil be applied to the
requests received on 14 December 2020.
A copy of the relevant provisions of the FOI Act is attached.
Yours sincerely,
Sandra Koller
Director, Legal and Policy
PAGE 2 OF 4
Relevant provisions of the Freedom of Information Act 1982
Division 1—Vexatious applicants
89K Vexatious applicants—declaration
(1) The Information Commissioner may, by written instrument (a
vexatious applicant
declaration), declare a person to be a vexatious applicant.
Note 1:
Section 89L sets out the grounds on which a declaration may be made.
Note 2:
For variation and revocation of the instrument, see subsection 33(3) of the
Acts
Interpretation Act 1901.
(2) The Information Commissioner may make a declaration:
(a) on the application of an agency or Minister; or
(b) on the Information Commissioner’s initiative.
(3) If an agency or Minister has applied for a declaration, the agency or Minister has the
onus of establishing that the Information Commissioner should make the
declaration.
(4) The Information Commissioner must, as soon as practicable, give written notice to
the person in relation to whom the vexatious applicant declaration is made.
89L Vexatious applicants—grounds for declaration
(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.
(2) A person engages in an
access action if the person does any of the following:
(a) makes a request;
(b) makes an application under section 48;
(c) makes an application for internal review;
(d) makes an IC review application.
(3) The Information Commissioner must not make a declaration in relation to a person
without giving the person an opportunity to make written or oral submissions.
PAGE 3 OF 4
(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.
89M Vexatious applicants—effect of declaration
(1) A vexatious applicant declaration has effect in accordance with the terms and
conditions stated in the declaration.
(2) Without limiting subsection (1), a vexatious applicant declaration in relation to a
person may provide that:
(a) an agency or Minister may refuse to consider any of the following if made by
the person without the written permission of the Information Commissioner:
(i) a request;
(ii) an application under section 48 (amendment of records);
(iii) an application for internal review; and
(b) the Information Commissioner may refuse to consider an IC review
application made by the person.
(3) If a decision is made as mentioned in subsection (2), the agency, Minister or the
Information Commissioner (as the case requires) must, as soon as practicable, notify
the vexatious applicant of the decision.
89N Vexatious applicants—review by Tribunal
An application may be made to the Tribunal for a review of a decision under
section 89K of the Information Commissioner to make a vexatious applicant
declaration.
Note 1:
An application for the review of a decision may be made by a person whose interests are
affected by the decision (see section 27 of the
Administrative Appeals Tribunal Act 1975).
Note 2:
Subsection 29(2) of the
Administrative Appeals Tribunal Act 1975 sets out the time within
which the application for review must be made.
Note 3:
Section 30 of the
Administrative Appeals Tribunal Act 1975 sets out who the parties are to a
proceeding before the Tribunal.
PAGE 4 OF 4