ICON alert – edition 29

Message from FOI Commissioner Alice Linacre

Hello and welcome to our latest ICON alert.

In this edition, we put a spotlight on 2 vexatious applicant declarations that I recently made. We've included summaries of these Declarations, and they reinforce the importance of early engagement with applicants to moderate access actions where appropriate. The OAIC has also recently finalised 2 applications for vexatious applicant declarations as withdrawn after OAIC engagement with the agencies. We have 8 applications on hand, and we are working through them, as well as drafting an update to Part 12 of the FOI Guidelines. A vexatious applicant declaration has the practical effect of preventing a person from exercising an important legal right conferred by the FOI Act, and will not be lightly made.

As we begin the 2026–27 year, it's important to ensure your Q4 and annual FOI statistics are submitted on time. We’ve therefore shared the relevant deadlines and resources.

This edition also shares tips for agencies in responding to IC review of searches matters, and resources on managing increasing FOI workloads.

I hope you find these tips and resources useful, and thank you for your continued commitment to supporting an effective and transparent FOI system.

Spotlight on vexatious application declaration matters

The FOI Commissioner has recently made 2 vexatious applicant declarations or ‘VADs’:

• Cancer Australia and ‘BAX’ (Freedom of information) [2026] AICmr 51 (30 June 2026) (‘BAX’)
• Australian Human Rights Commission and ‘BAY’ (Freedom of information) [2026] AICmr 53 (8 July 2026) (‘BAY’)

A key takeaway is in deciding whether to make a VAD, the FOI Commissioner will consider whether the agency or minister attempted to engage with the respondent about moderating their access actions, and if so, whether the respondent subsequently moderated their access actions.

Cancer Australia and ‘BAX’ (Freedom of information) [2026] AICmr 51 (30 June 2026) (‘BAX’)

The FOI Commissioner found that the individual’s 112 access actions over a period of approximately 10 years may not be sufficient to amount to repeated engagement on their own.

However, the overlapping subject matter and repetitive nature of particular access actions – such as repeated requests for legal invoices – that the individual had made over a prolonged period constitute ‘repeated engagement in access actions’ (s 89L(1)(a)(i)).

The FOI Commissioner also found that the repeated engagement in access actions involved an abuse of process, by using the FOI Act to immoderately pursue a separate grievance against Cancer Australia and its staff which unreasonably interfered with Cancer Australia’s operations (s 89L(1)(a)(ii)).

The individual had made an undertaking with Cancer Australia to firstly restrict themselves to ‘no more than one FOI request per month until [their] Comcare matter is resolved, limited to documents [they have] not received before or a date range within the last month’.

In considering whether the repeated engagement in access actions was an abuse of process, the FOI Commissioner took into account that while the individual may have substantially adhered to the first part of that undertaking, they did not adhere to the second part of that undertaking

The FOI Commissioner declared that Cancer Australia is not required to process any access actions from the individual for a period of 2 years, and not to process certain access actions, such as those that duplicate a previous access action, for a period of 5 years.

Australian Human Rights Commission and ‘BAY’ (Freedom of information) [2026] AICmr 53 (8 July 2026) (‘BAY’)

The individual had made several FOI requests to the Australian Human Rights Commission (AHRC) over a 3-day period after having agreed to limit their FOI requests to one per quarter.

The FOI Commissioner found that 71 access actions between 26 October 2024 and 10 September 2025 constitute repeated engagement in access actions, even taking into account 18 withdrawals (s 89L(1)(a)(i)).

In their correspondence with the AHRC about the access actions, the individual made unsubstantiated and inflammatory accusations about the AHRC and named staff members.

The FOI Commissioner found that these access actions involved an abuse of process (s 89L(1)(a)(ii)) based on the following key points:

• The pattern of requests, which constituted a disproportionate number of the overall requests received by the agency at that time, and the inappropriate tone of those engagements, demonstrates the individual used the FOI Act to immoderately pursue a separate grievance against the AHRC and its staff which unreasonably interfered with the operations of the agency.
• The individual’s failure to engage productively with the AHRC to moderate their requests, after the AHRC advised that it was considering applying for a VAD. In particular the individual subsequently made several FOI requests over a 3-day period after they had agreed to limit their FOI requests to one request per quarter.

The FOI Commissioner declared that the AHRC is not required, for a period of 2 years, to consider any outstanding or further FOI requests and applications for internal review made by the individual.

The FOI Commissioner also declared that the OAIC is not required, for a period of 2 years, to consider any FOI requests made by the individual in relation to matters involving them and the AHRC, or applications for IC review of a decision by the AHRC for the respondent.

Guidance for agencies on VADs

We are drafting an update to Part 12 of the FOI Guidelines, with further advice in upcoming ICON alerts.

In the meantime, we have broadly summarised the stages of a VAD matter for your consideration:

Quarter 4 and annual FOI statistics due this month

Agencies and ministers are required to provide their FOI statistical returns for quarter 4 of the 2025–26 year, and annual returns for 2025–26 by the following deadlines:

• For quarter 4 (1 April to 30 June): By 21 July 2026
• For the annual year (1 July 2025 to 30 June 2026): By 31 July 2026.

The Information Commissioner has no discretion to extend these deadlines, and requires the information in your agencies’ returns to discharge her obligation to report annually on freedom of information matters.

Remember to open the FOIstats guide to help you complete the returns. You can also review the tips that we set out in our special ICON alert – edition 28.

If you still have questions after reviewing the FOIstats guide, please contact us via our Enquiry form.

IC review of searches matters

Following our FOI Regulatory Practice Update webinar last month, we wanted to share a practical tip that may assist agencies responding to IC reviews of searches matters.

During IC reviews, agencies commonly provide evidence of searches undertaken via completed search minute templates that were developed by individual agencies.

We have observed that some templates do not always prompt search officers to record all of the information the OAIC requires to assess the adequacy of searches. As a result, we may need to seek further information through requests, notices or directions before we can progress an IC review.

Minor amendments to search minute templates may help answer these questions at the outset and reduce the need for further enquiries.

When reviewing your search minute template, consider whether it prompts search officers to record the following information:

• Scope of the request – Does it record the original FOI request, any agreed modifications to its scope, and the agency's interpretation of the request?
• Searches undertaken – Does it identify who conducted the searches, where they searched, when the searches were undertaken, how the searches were conducted, and the search terms used?
• Rationale – Does it explain why search officers and search locations were selected?
• Systems searched – Does it explain why the systems, databases or repositories searched were relevant?
• Outcomes – Does it explain why any documents are outside the scope of the request and why any relevant documents identified were not released?
• Reasons - Does it explain why a document cannot be found, does not exist, or has not been received?

The OAIC Search Minute template and Taking All Reasonable Steps checklist may also help agencies develop templates that will ensure the necessary information is included to demonstrate that reasonable steps have been taken to find the information sought.

Managing surges in FOI requests

At times, agencies may experience increases in FOI requests which may pose challenges in ensuring decisions are finalised within the statutory timeframes.

We describe 10 practical strategies for agencies to manage surges in FOI requests in our resource Managing increased volume of FOI requests | OAIC.

Resources that could more generally help agencies to efficiently deal with FOI requests include:

• Freedom of Information processing period calculator | OAIC
• FOI Essentials toolkit | OAIC
• FOI Self-assessment tool for agencies | OAIC

Recent IC review decisions

Information Commissioner decisions made under s 55K of the FOI Act are published on AUSTLII. Recent decisions include:

‘BBE’ and Australian Human Rights Commission (Freedom of information) [2026] AICmr 59 (16 July 2026)

Key Points: This decision discusses the application of s 47E(d) of the FOI Act to documents arising from and obtained during the conciliation of a complaint by the Australian Human Rights Commission. The decision notes that the effectiveness of the Commission’s complaint-handling function relies on the willingness of participants to be open and frank during the conciliation process. In these circumstances the Commissioner gave weight to the strong public interest in maintaining the confidentiality of the documents to ensure the ability of the Commission to undertake its complaint handling functions effectively.

‘BBB’ and Comcare (Freedom of information) [2026] AICmr 56 (13 July 2026)

Key Points: This decision discusses the application of ss 24A, 42 and 47F of the FOI Act to documents relating to the applicant’s worker’s compensation claim. Of note, it affirms Comcare’s decision to withhold documents created for the dominant purpose of receiving legal advice in relation to proceedings in the ART under s 42, and names, email addresses and telephone numbers of staff under s 47F.

‘BBA’ and Services Australia (Freedom of information) [2026] AICmr 55 (10 July 2026)

Key points: This decision discusses the application of ss 24A and 47F of the FOI Act to documents concerning care arrangements relating to a child. In affirming the decision in relation to s 47F, the Commissioner gave weight to the submission that disclosure would prejudice the protection of a third-party individual’s right to privacy because the documents were collected in relation to their personal assistance affairs, and the lack of consent to disclosure.

‘BAZ’ and Australian Trade and Investment Commission (Freedom of information) [2026] AICmr 54 (10 July 2026)

Key points: This decision discusses whether Austrade’s decision to find the applicant liable to pay a charge of $560.00 under s 29 of the FOI Act, was the correct and preferable decision in the circumstances. It provides an example of where a charge has been waived due to the general public interest.

Australian Conservation Foundation and Department of Foreign Affairs and Trade (Freedom of information) [2026] AICmr 52 (7 July 2026)

Key points: This decision discusses the application of ss 33(a)(iii), 33(b) and 47C of the FOI Act. In considering whether disclosure of the material found to be conditionally exempt under s 47C would be contrary to the public interest, the Commissioner gave limited weight to the submission that disclosure would inhibit frankness and candour because of the procedural nature of the documents and the lack of an explanation why the circumstances warranted a departure from the assumption that public servants are obliged to provide robust and frank advice at all times.

‘BAW’ and Services Australia (Freedom of information) [2026] AICmr 50 (25 June 2026)

Key points: This decision discusses whether a practical refusal reason exists in relation to a request for documents pertaining to the applicant between 29 October 2018 and 22 January 2022. It provides an example where processing a broadly worded request for documents could lead to a substantial and unreasonable diversion of an agency’s resources.