Archived Document – This document is no longer in use. Current FOI guidelines are found at: http://www.oaic.gov.au/publications/guidelines.html#foi_guidelines
12.1 The Information Commissioner may declare a person to be a vexatious applicant, either on the Commissioner’s own motion or if an agency or minister applies (s 89K). The power is additional to the Commissioner’s discretion not to undertake or continue an IC review application on the basis that it is frivolous, vexatious or not made in good faith (s 54W(a)) (see Part 10). A vexatious applicant declaration is not an action that the Commissioner will undertake lightly, but its use may be appropriate at times.
12.2 Before declaring a person to be a vexatious applicant the Information Commissioner must be satisfied that:
(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)).
12.3 An ‘access action’ is defined under s 89L(2) as:
12.4 ‘Abuse of process’ includes harassing or intimidating an individual or an agency employee; unreasonably interfering with an agency’s operations; and seeking to use the Act to circumvent access restrictions imposed by a court (s 89L(4)). In a similar context, the Federal Court of Australia in Ford v Child Support Registrar noted that a series of FOI applications of a repetitive nature and apparently made with the intention of annoying or harassing agency staff could be classified as vexatious. Also relevant in considering an abuse of process is whether an applicant has made repeated requests for documents which have been provided earlier or to which access has been refused.
12.5 A decision by the Information Commissioner to make a vexatious applicant declaration will be based on the facts of each case, after considering any submission from the person concerned. This power is new to the FOI Act. Over time, the Commissioner may develop further guidance based on the Commissioner’s decisions in individual cases either to make or not make a declaration.
12.6 Because this power is a new one, the Information Commissioner will not consider making a vexatious applicant declaration based only on a person’s FOI access actions prior to 1 November 2010. A declaration must relate to a person’s access actions under the law that applies from 1 November. A prior access action may, however, be relevant, particularly if it was pursued through all stages of the review process and relates to the same documents or issues arising in a fresh access application.
12.7 An agency or minister who applies for a vexatious applicant declaration bears the onus of showing that the declaration should be made (s 89K(3)). A clear and convincing case must be established. A declaration has the practical effect of preventing a person from exercising an important legal right conferred by the FOI Act, and will not lightly be made. The Commissioner will also take into account that other provisions of the FOI Act can be used in appropriate circumstances to resolve requests that pose a practical difficulty (such as ss 24 and 24AA which allow a request to be refused where a ‘practical refusal reason’ exists).
12.8 Before making a declaration, the Information Commissioner must give the person concerned an opportunity to make written or oral submissions(s 89L(3)).
12.9 A vexatious applicant declaration may be made subject to terms and conditions (s 89M). For example, the declaration may provide that an agency or minister may refuse to deal with an access request, an application for amendment of personal information or an application for internal review unless the Information Commissioner gives permission (s 89M(2)(a)). The declaration may also provide that the Information Commissioner may refuse to consider an IC review application by the person (s 89M(2)(b)).
12.10 A vexatious applicant declaration must be made in writing and be notified as soon as practicable to the person concerned, by the agency, minister or the Information Commissioner (as the case requires) (ss 89K(4), 89M(3)). A vexatious applicant declaration may be revoked or varied (s 33 Acts Interpretation Act 1901).
12.11 A decision by the Information Commissioner to declare a person to be a vexatious applicant is a decision that can be reviewed by the AAT (s 89N).
  FCA 328.