s 47E(d)
s 47E(d)
FOIREQ20/00232 - 257
Commissioner brief: Vexatious applicant declarations
Key messages
• The Information Commissioner has the power to declare a person to be a vexatious
applicant if they are satisfied that the grounds set out in s 89L of the FOI Act exist.
• A declaration has the practical effect of preventing a person from exercising an
important legal right conferred by the FOI Act. For that reason, a declaration wil not be
lightly made, and an agency that applies for a declaration must establish a clear and
convincing need for a declaration.
• A declaration by the Information Commissioner can be reviewed by the Administrative
Appeals Tribunal.
• To date, no Information Commissioner has made a decision to declare a person a
vexatious applicant on their own initiative and there would need to be compelling
circumstances for the Information Commissioner to consider exercising this discretion.
• Part 12 of the FOI Guidelines provide details of the process undertaken by the
Information Commissioner when considering her discretion whether or not to declare a
person to be a vexatious applicant.
• Part 12 of the FOI Guidelines were updated in November 2019 to reflect recent
Information Commissioner decisions, provide further guidance on the steps agencies
and ministers should take before and after making an application for a vexatious
applicant declaration and further guidance on the circumstances in which the
Information Commissioner declare a person to be a vexatious applicant.
Year s 89L application
Number received
Number finalised
received
2017-18
0
2 (from previous year)
2018-19
9
8 (3 made; 3 refused; 2
withdrawn)
2019-20
3
1 (1 made)
See table at
Attachment 1 for details of the declarations made in 2018-19 and 2019-20. Al
Information Commissioner vexatious applicant declarations are published on AustLI .
Possible questions
When would the Information Commissioner declare a person to be a vexatious applicant? • Part 12 of the FOI Guidelines explain that the Information Commissioner may declare a
person to be a vexatious applicant only if the Commissioner is satisfied that:
FOIREQ20/00232 - 258
(a) The person has repeatedly engaged in
access actions that involve an
abuse of
process.
(b) the person is engaging in a particular access action that would involve an
abuse of
process, or
(c) a particular access action by the person would be
manifestly unreasonable (s
89L(1)).
• An ‘
access action’ is defined under s 89L(2) as:
o making a request under s 15.
o making an application for amendment or annotation of a record of personal
information under s 48.
o applying for internal review (s 54B).
o applying for Information Commissioner review (s 54N).
• An ‘
abuse of process’ includes but is not limited to:
o harassing or intimidating an individual or an agency employee.
o unreasonably interfering with an agency’s operations.
o seeking to use the FOI Act to circumvent access restrictions imposed by a court (s
89L(4)).
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.
Key dates
• 1 November 2010 – the
Freedom of Information Amendment (Reform) Act 2010 came
into effect. This Act established the Information Commissioner’s power to declare a
person to be a vexatious applicant.
Document history
Written by
Reason
Approved by
Date
Irene Nicolaou
October 2020 Senate Name
Estimates
FOIREQ20/00232 - 259
Attachment 1
All vexatious applicant declarations made by Information Commissioner Angelene Falk and AAT appeals
Decisions in 2018/19
Term of declaration
Appea
l1
Outcome
1 Office of the Registrar of Indigenous Corporations and ‘PW’ (Freedom of information)
3 years from date of declaration No advice from AAT
N/A
[2019] AICmr 6 (13 February 2019)
2 National Archives of Australia and Ronald Price (Freedom of information) [2019] AICmr 5 years from date of declaration No advice from AAT
N/A
16 (29 April 2019)
3 Indigenous Business Australia and ‘QB’ (Freedom of information) [2019] AICmr 14 (29
2 years from date of declaration Yes (‘QB’ respondent
N/A
April 2019)
has appealed)
4 Services Australia and 'RS' (Freedom of information) [2020] AICmr 6 (24 February 2020) 2 years from date of declaration No advice from AAT
N/A
(To be published on AUSTLI )
1 Based on the advice received by the OAIC from the AAT as at 23 September 2020. ‘Yes’ indicates that the AAT has provided advice that an appeal has been received.
FOIREQ20/00232 - 260
Commissioner brief: FOI Regulatory functions D2020/002736
Key messages
• My office is an independent statutory agency established under the
Australian
Information Commissioner Act 2010 (AIC Act). The AIC Act confers the Information
Commissioner with power to perform FOI regulatory functions, including:
o review of FOI decisions of agencies and ministers
o investigating FOI complaints
o issuing FOI guidelines
o monitoring agencies’ compliance with the FOI Act
o making decisions on extension of time requests and vexatious applicant
declarations and
o compiling FOI data and access trends.
• The ful -time equivalent al ocated to the freedom of information regulatory functions is
18 ASL (19% of the 124 ASL cap). The increased funding in the 2019-20 budget does not
apply to freedom of information functions.
•
IC reviews: the numbers of IC reviews on hand has increased each year for the past
four years.
o The overal increase in IC review applications from 2014-15 to 2019-20 was
186%.
o At the end of June 2020, the OAIC had 1,088 IC review applications on hand (this
had increased to 1,124 by 30 September 2020). While the office continues to
look for and implement opportunities to increase productivity in relation to its
freedom of information functions, it remains the case that although significant
efficiencies have been found and applied the function has not kept pace with
incoming reviews.
o The IC review jurisdiction is complex and many documents subject to IC review
are sensitive (including cabinet documents, national security, defence and
international relations, legal y privileged document, documents affected law
enforcement, and confidential documents) and often affect third parties. A high
proportion of matters involve consideration of various (more than one)
exemptions and hundreds of folios of material that agencies and ministers
contend is exempt under the FOI Act.
o In the absence of supplementary FOI funding, the ability of the OAIC to keep
pace with increases to the review caseload wil continue to be chal enged. (For
further information, see Commissioner Briefs D2020/017446 and FOI IC reviews
(D2020/017447) and FOI process review D2020/000765).
FOIREQ20/00232 - 261
•
FOI complaints: as the end of June 2020, the OAIC had 129 open complaints (as at 30
September 2020 this was 136).
o The most complained about issue is delay.
o On 25 October 2019, I opened a Commissioner Initiated Investigation into delays
in the processing of FOI requests in the Department of Home Affairs. This
investigation is ongoing. (For further information, see Commissioner Briefs FOI
Complaint issues (D2020/017450) and Department of Home Affairs CI
(D2020/017451) .
•
Extension of time applications: Agencies and ministers may apply to the Information
Commissioner for an extension of time (EOT) during the processing of FOI requests.
o In 2019-20 the OAIC received 4,243 EOT application, a 12% increase on the
previous year. Most of these (1,357) were received in the third quarter, when
44% more were received than during the same time the previous year. (For
further information, see Commissioner Brief FOI Extension of time applications
(D2020/017457). The OAIC received 1,100 EOT applications in the first quarter of
2020-21, an 11% increase over the previous quarter (quarter 4 2019-20) and a
38% increase over the same period in 2019.
•
FOI Guidelines: During 2019-20 the OAIC worked on updates to several parts of the FOI
Guidelines.
o On 1 July 2019, my office published a discussion paper on disclosure of public
servants’ personal information (names and contract details) in response to FOI
requests. On 20 August 2020, I issued a position paper outlining my approach to
this issue. We are currently revising Part 3 (Processing and deciding requests for
access) and Part 6 (Conditional exemptions) of the FOI Guidelines to give effect
to the approach outlined in the position paper. (For further information, see
Commissioner Briefs Public servants’ names and contact details (D2020/017455)
and FOI OAIC engagement and Guidelines update (D2020/017453).
o In April 2019, the OAIC consulted agencies in relation to proposed revisions to
Part 4 of the FOI Guidelines (Charges). We published an update to Part 4 on 19
June 2020.
o The OAIC revised and updated Parts 3 (Processing and deciding requests for
access), 10 (Review by the Information Commissioner) and 12 (Vexatious
applicant declarations)
o The OAIC is currently updating Parts 3 (Processing and deciding requests for
access) and 6 (Conditional exemptions) of the FOI Guidelines to reflect the
approach outlined in the position paper on the disclosure of public servants’
names and contact details in response to FOI requests.
FOIREQ20/00232 - 262
o We are revising Part 14 of the FOI Guidelines to incorporate the findings of the
disclosure log desktop review, which is near finalisation and wil be published
shortly. We are also revising Part 9 (Internal Review) fol owing publication of a
consultation draft in July 2020. Our next priority wil be revision of Part 5
(Exemptions).
•
Vexatious applicant declaration: To date, no Information Commissioner has made a
decision to declare a person a vexatious applicant on their own initiative. There would
need to be compel ing circumstances for me to consider exercising this discretion. A
declaration has the practical effect of preventing a person from exercising an important
legal right conferred by the FOI Act. For that reason, a declaration wil not be lightly
made, and an agency that applies for a declaration must establish a clear and
convincing need for a declaration. A declaration by the Information Commissioner can
be reviewed by the Administrative Appeals Tribunal.
o I have made one vexatious applicant declaration in 2019-20. (For further
information, see Commissioner brief Vexatious applicant declarations
(D2020/002344)).
•
Monitoring compliance with the FOI Act: My office is currently reviewing agency
compliance with the disclosure log obligations in the FOI Act. A key focus is whether
agencies make documents directly available for download to members of the public.
The disclosure log desktop review is near finalisation and wil be published shortly. (For
further information, see Commissioner Briefs FOI Disclosure Logs (D2020/017452) and
Information Publication Scheme (D2020/017454).
•
FOI request data and trends: Data col ected from Australian government agencies has
been reported in the OAIC annual report.
o The number of FOI requests made to Australian Government agencies in 2019–
20 increased by 6% over the previous year.
o 47% of al FOI requests were granted in ful in 2019–20.
o 81% of al FOI requests received were for documents containing personal
information. (For further information, see Commissioner briefs 2019-20
Commonwealth agency FOI statistics (D2020/017448) and Trends in use of FOI
Act exemptions (D2020/017449).
•
Domestic and international engagement on FOI issues: I engage with
o Information Commissioners and Ombudsmen from other Australian jurisdictions
and international y, Association of Information Access Commissioners (AIAC) (bi-
annual y)
o The International Conference of Information Commissioners (ICIC) (annual y).
o My office holds twice yearly information sessions for FOI practitioners through
our Information Contact Officers Network (ICON) and engages with other
FOIREQ20/00232 - 263
Australian government agencies and civil society in relation to the Open
Government Partnership (OGP). (For further information, see Commissioner
briefs FOI OAIC engagement and Guidelines update D2020/017453).
•
Other issues: For further information see FOI official ministerial documents
(D2020/000760) and FOI Act Reforms (D2020/000764)
Document history
Updated by
Reason
Approved by
Date
Nikki Edwards
October 2020 Senate Name
29.9.2020
Estimates
Raewyn Harlock
