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Part 12 — Vexatious applicant declarations (v1.2)

Archived Document — This document is no longer in use. Read the current FOI guidelines.

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Version 1.2, October 2014

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). A declaration has effect in accordance with the terms and conditions stated in the declaration (s 89M). 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 of these Guidelines).

12.2 A decision by the Information Commissioner to make a vexatious applicant declaration will be based on the facts of the matter, after considering any application or submission from an agency or minister and any submission from the person against whom a declaration may be made.

12.3 The Information Commissioner’s power to make a vexatious applicant declaration is similar to the powers exercisable by courts and tribunals to declare either proceedings or a litigant to be vexatious. Caution is required, however, in applying principles developed in the civil litigation context to the FOI context.[1] Matters that may be considered by a court or tribunal faced with a vexatious litigant issue include a person’s motive in commencing proceedings, their relationship with or attitude to the other parties in the proceedings, the legal merit of their claim, and the utility of the proceedings. Those matters are not usually relevant in an FOI context (see [12.10]). Nevertheless, the ‘legally enforceable right to obtain access’ declared in s 11(1) is expressed to be ‘subject to this Act’, which contains provisions relating to vexatious applicants. It may therefore be appropriate in applying those provisions to take into account matters that would otherwise be ignored in FOI processing.[2]

Grounds for declaration

12.4 The Information Commissioner may declare a person to be a vexatious applicant if the Commissioner is satisfied that:

  1. the person has repeatedly engaged in access actions that involve an abuse of process
  2. the person is engaging in a particular access action that would involve an abuse of process, or
  3. a particular access action by the person would be manifestly unreasonable (s 89L(1)).

12.5 An ‘access action’ is defined under s 89L(2) as:

  • making an access request under s 15
  • making an application for amendment or annotation under s 48
  • applying for internal review (s 54B), or
  • applying for Information Commissioner review (s 54N).

12.6 ‘Abuse of process’ includes but is not limited to:

  • harassing or intimidating an individual or an agency employee
  • unreasonably interfering with an agency’s operations, or
  • seeking to use the Act to circumvent access restrictions imposed by a court (s 89L(4)).

General considerations

12.7 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 will not lightly be made, and an agency that applies for a declaration must establish a clear and convincing need for a declaration.

12.8 On the other hand, the power conferred on the Information Commissioner to make a declaration is an important element of the balance in the FOI Act between conferring a right of access to government documents while ensuring that access requests do not interfere unreasonably with agency operations. This is apparent from the terms of s 89L, which express a principle that the legal right of access should not be abused by conduct that harasses or intimidates agency staff, unreasonably interferes with the operations of agencies, circumvents court imposed restrictions on document access, or is manifestly unreasonable.[3]

12.9 The power to make a declaration is discretionary. In addition to considering the grounds for a declaration specified in s 89L, the Information Commissioner may consider other relevant features of a person’s access actions or FOI administration in the agency that has applied for a declaration.[4]

12.10 Aspects of the FOI Act that must be taken into account in balancing the interests of agencies and applicants include that:[5]

  • the objects of the FOI Act include increasing public participation in and scrutiny of government processes (s 3(2))
  • the Act does not limit the number of FOI requests that a person can make in a given period, nor the number or type of documents that a person can seek in an individual request to an agency that is subject to the Act
  • the formal requirements for making a request are minimal and allow a person to make a request by email without payment of an application fee (s 15(2))
  • a person’s right of access is not affected by any reason they give for seeking access, or an agency’s belief as to their reasons for seeking access (s 11(2))
  • no charge is payable if an applicant requests access to a document that contains their own personal information.[6]

12.11 The FOI Act enables an agency to take steps (other than applying for a vexatious applicant declaration) to regulate or reduce the impact that individual requests may have on the workload or operations of the agency. An agency’s recourse to these other measures in relation to a particular applicant may be a relevant consideration for the Information Commissioner in deciding whether to make a declaration against that person. Under s 24 an agency may require an applicant to engage in a request consultation process if the agency believes there may be a practical refusal reason for refusing a request that substantially and unreasonably diverts the resources of the agency from its other operations or does not adequately identify the documents requested (ss 24, 24AA, 24AB). Other measures available to an agency include: seeking an applicant’s or the OAIC’s agreement to an extension of processing time (ss 15AA, 15AC); notifying an applicant that a charge is payable for a request for information other than personal information that involves more than five hours of decision-making time (s 29); and consulting with an applicant about the nature of a request (s 15(3)) and other means of satisfying the applicant’s desire to obtain government information (see Part 3 of these Guidelines).

12.12 The Information Commissioner may consider the conduct of a person once notified by that a declaration is being considered.[7] In particular, the Commissioner may take into account: a person’s willingness to discuss their access actions and whether these constitute an abuse of process or are manifestly unreasonable; and whether the person engages in fresh access actions, directed either at the agency or the OAIC, that are similar in nature to access actions that are under consideration by the Commissioner. The Commissioner’s general view is that, at this active stage of the proceedings, it is inappropriate for a person to make fresh FOI requests for documents in the possession of the agency or the OAIC relating to the decision to apply for or commence consideration of a vexatious applicant declaration. The person will have an opportunity in the proceedings initiated by the Commissioner to raise issues of concern or to request information about the matters under consideration.

12.13 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 identified in other OAIC reviews or complaint handling should be addressed by the agency before further consideration is given to making a declaration.

12.14 In deciding whether a ground has been established under s 89L, the Information Commissioner cannot consider contact between a person and an agency that is not part of an access action (for example, complaints and general correspondence).[8] A broader pattern of contact between a person and an agency may nevertheless be relevant in deciding whether as a matter of discretion a declaration should be made under s 89K.

Repeatedly engaging in access actions

12.15 One ground on which a declaration may be made is that a person has ‘repeatedly engaged’ in access actions that involve an abuse of process (s 89L(1)(a)). The term ‘repeatedly’ is not defined in the FOI Act.

12.16 There is no fixed number of access actions required to establish a pattern of repeated requests. Whether such a pattern exists will 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,[9] 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.

12.17 The application of this criterion – ‘repeatedly’ – overlaps with the two other grounds for making a declaration, namely, that a person is engaging in ‘a particular access action’ that would either involve an abuse of process (s 89L(1)(b)) or be manifestly unreasonable (s 89L(1)(c)). In a case in which current access actions may independently be regarded as an abuse of process or unreasonable, deciding whether those actions are part of a pattern of repeated requests may not be a decisive issue.

Engaging in a particular access action

12.18 A declaration may be based on one access action only – specifically, ‘a particular access action’ that would either involve an abuse of process (s 89L(1)(b)) or be manifestly unreasonable (s 89L(1)(c)).[10]

12.19 A declaration that is based on one access action may include terms or conditions that go beyond that access action. For example, the declaration may provide that an agency is not required to consider future requests from the person (either of the same kind or generally) unless the person has the written permission of the Information Commissioner to proceed.[11] (See below at [12.37]-[12.39].)

Abuse of process – harassment and intimidation

12.20 The terms ‘harassing’ and ‘intimidating’ are not defined in the FOI Act, and bear their ordinary dictionary 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]

12.21 The occurrence of harassment or intimidation must be approached objectively.[13] 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, for example, of tormenting, threatening or disturbing agency employees. An agency will be expected to explain or provide evidence of the impact that a person’s access actions have had on agency employees, though this evidence must be considered in context with other matters.[14]

12.22 Harassment and intimidation may be established by a variety of circumstances that include: the content, tone and language of a person’s correspondence with an agency, and especially if language is used that is insulting, offensive or abusive; unsubstantiated, derogatory and inflammatory allegations against agency staff;[15] requests that are targeted at personal affairs information of agency employees;[16] requests that are designed to overawe agency staff and force them to capitulate on another issue;[17] requests of a repetitive nature that are apparently made with the intention of annoying or harassing agency staff;[18] and a person’s refusal or failure to alter dubious conduct after being requested by an agency to do so.[19]

12.23 Those circumstances, if present in an individual case, must nevertheless be assessed objectively in a broader FOI context. It is not contrary to the requirements or spirit of the FOI Act that an FOI request will contain additional commentary or complaints by the applicant.[20] These may provide context for a request, or be compatible with the stated objects of the FOI Act of facilitating scrutiny, comment and review of government activity.

Abuse of process – unreasonable interference with agency operations

12.24 An abuse of process that is grounded in unreasonably interfering with an agency’s operations can, under s 89L, arise from either a particular access action (s 89L(1)(b)) or a pattern of repeated access actions (s 89L(1)(a)). The more usual situation will be a pattern of repeated requests, bearing in mind that an agency can initiate a practical refusal process for a particular access action that could have an unreasonable workload impact on the agency (s 24).

12.25 Factors that may be considered in deciding if there is a pattern of repeated access actions that unreasonably interfere with an agency’s operations include:[21]

  • the total number of a person’s access actions to the agency in a specific period, and in particular, whether a high number of 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
  • the impact of the person’s access actions on FOI administration in the agency, and in particular, whether a substantial workload impact has arisen from the nature of a person’s access actions, such as multiple FOI requests that are poorly-framed or for documents that are non-existent, requests for documents that have earlier 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. It is nevertheless important to bear in mind that an individual, who may lack both expertise in dealing with government and a close knowledge of an agency’s records system, may make access requests that are poorly framed, overlapping or cause inconvenience to an agency
  • the impact of the person’s access actions on other work in the agency, and in particular, whether specialist or senior staff have to be redeployed from other tasks to deal with FOI requests, or the requests have caused distress to staff or raised security concerns that required separate action
  • whether the agency has used other provisions of the FOI Act to lessen the impact of the person’s access actions on its operations (see [12.11] above)
  • the size of the agency and the resources that it can reasonably allocate to FOI processing
  • 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
  • whether deficiencies in an agency’s FOI processing or general administration have contributed to or might explain a person’s access actions (see [12.13] above).

12.26 The reference to ‘unreasonable interference with agency operations’ in s 89L(4) should be read alongside a similar phrase in s 24AA(1)(a)(i) for deciding whether a practical refusal reason exists in relation to an FOI request (namely, ‘would substantially and unreasonably divert the resources of the agency from its other operations’, see Part 3 of these Guidelines). Both sections raise similar but not identical issues. The practical refusal power applies to a single FOI request (or two or more similar requests) that will have an unreasonable workload impact on an agency; whereas the vexatious applicant declaration power is more usually focussed on whether the pattern of an applicant’s behaviour may be interfering unreasonably with an agency’s operations.[22]

Abuse of process – circumventing court-imposed access restrictions

12.27 It will be a question of fact in the individual case whether a person has made an FOI access request or requests that are ‘seeking to use the [FOI] Act for the purpose of circumventing restrictions on access to a document (or documents) imposed by a court’ (s 89L(4)(c)). It will be necessary to compare the terms of a person’s request with the terms of a court order.

Abuse of process – other types

12.28 The three categories of ‘abuse of process’ listed in s 89L(4) are not an exhaustive list. ‘Abuse of process’ can include behaviour of another kind, as illustrated by the following two examples of declarations under s 89K:

  • a declaration against a person who had not cooperated reasonably with an agency in removing offensive language from FOI access requests and endeavouring to comply with the formal requirements of the Act for making requests[23]
  • a declaration made against a person whose particular access action (to amend personal records) repeated an issue that had been addressed and resolved in earlier tribunal proceedings and did not raise any new issue.[24]

A particular access action that would be manifestly unreasonable

12.29 This ground applies only to a particular access action that would be manifestly unreasonable. The term ‘manifestly unreasonable’ is not defined in the FOI Act. The factors that will be 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. It will also be relevant to consider whether an agency could more appropriately respond to a manifestly unreasonable access action in other ways, such as consultation with the applicant either informally or under s 24AB to establish if a practical refusal reason exists for refusing a request.

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Procedure

Applying for a vexatious applicant declaration

12.30 An agency or minister who applies for a vexatious applicant declaration bears the onus of establishing that the declaration should be made (s 89K(3)). As noted above at [12.7], an agency must establish a clear and convincing need for a declaration.

12.31 Prior to deciding to apply for a declaration an agency should consider telling the person concerned of this possibility and inviting them to consult with a view to removing the need for a declaration. An agency may also approach the OAIC to discuss the form that an application should take and the evidence that may be required in support.

12.32 An application for a vexatious applicant declaration must include:

  • background information about the person’s access actions and how the agency or minister dealt with those access actions
  • a clear statement of the grounds on which the agency or minister seeks the declaration
  • evidence that supports those grounds, such as copies of correspondence with the person, or file notes about interactions between the person and agency staff
  • any proposed terms or conditions which the agency or minister believes the declaration should include (see also [12.37]-[12.39]).

Submissions from the person

12.33 The Information Commissioner cannot make a vexatious applicant declaration without first giving the person concerned an opportunity to make written or oral submissions (s 89L(3)). The person will be given the option of making both a written and oral submission. The Commissioner may decide to refuse an application without first notifying a person.

12.34 If the Information Commissioner proceeds to consider an agency’s application, the person will be given a copy of the agency’s application and attachments. Similarly, where the Commissioner has decided on his or her own initiative that a declaration may be warranted, the Commissioner will provide the person with the same kind of information that would have been expected in an application from an agency or minister.

Status of current and future access actions

12.35 The FOI Act does not expressly state whether an agency or minister is required to continue processing access actions that were on hand when the agency or minister applied to the Information Commissioner for a declaration, or were received while the Commissioner was considering the application.

12.36 Where the agency or minister’s application is in respect of a ‘particular access action’ under s 89L(b) or (c), it would be reasonable (subject to any contrary ruling from the Information Commissioner) to cease processing the particular access action until the Commissioner has decided whether to make a declaration. Where the application is in respect of a repeated number of requests, the agency or minister should consult the OAIC as to whether existing or fresh access actions must be processed. The Commissioner may approve a suspension of FOI processing on the basis that a declaration subsequently made by the Commissioner could include a term providing that the agency or minister is not required to process access actions commenced after a particular date. The Commissioner may also discuss the processing of those actions with the person during consideration of the application for a declaration.

Terms and conditions

12.37 A declaration may be made subject to terms and conditions (s 89M(1)), including that: an agency or minister may refuse to deal with an access action without the written permission of the Information Commissioner (s 89M(2)(a)); or the Commissioner may refuse to consider an IC review application from the person (s 89M(2)(b)). Terms and conditions that have been imposed on declarations made under the Act include a declaration that:

  • an agency was not required to consider any fresh access actions from the person without the written permission of the Information Commissioner[25]
  • the OAIC would not consider any FOI request from a person relating to any matter between the person and the agency that applied for the declaration, unless the Information Commissioner had certified in writing that the request met the requirements of s 15(2)(b) of the FOI Act and was not vexatious in nature[26]
  • an agency was not required to process a particular FOI request referred to in an agency’s application for a declaration, or to consider any future request from the person for access to documents relating to the personal affairs of staff of the agency, without the written permission of the Information Commissioner[27]
  • an agency was not required to consider any future FOI request from a person, without the written permission of the Information Commissioner, prior to a particular date when the declaration would cease operation[28]
  • an agency was not required to consider any future application from a person to amend or annotate a personal record, if the application raised the same issue as earlier dealt with in any of five specified tribunal decisions, without the written permission of the Information Commissioner[29]
  • a person could only engage in access actions with respect to a particular agency on specified terms and conditions, including that the person shall not engage: in more than one access action in any calendar month; in an access action within fourteen days of a previous action; that seeks access to more than three documents; that includes material that is not essential to the making of a request or application; that is a request for documents previously within the possession or control of the applicant or provided by the agency to the applicant or that were the subject of an access action by or on behalf of the applicant; that uses a pseudonym to make a request; or by means of an agent.[30]

12.38 In a case that involved a review of declaration made by the Information Commissioner, the AAT was critical of the declaration for providing that, for a period of one year, the agency was not required to consider any FOI request from the person without the written permission of the Information Commissioner. The AAT was of the view that the declaration was unduly harsh and that only in the most compelling circumstances should a person be required to obtain the Commissioner’s permission before exercising the important right to information conferred by the FOI Act.[31] The AAT substituted a new declaration that contained numerous specific conditions as outlined in the final dot point in the previous paragraph.

12.39 The Commissioner respectfully disagrees with the Tribunal’s view that a condition of that kind was inappropriate either generally or in a case of the kind under review. Section 89M of the FOI Act authorises a condition of that kind and does not impose any qualification that the condition only be imposed in ‘the most compelling circumstances’. The Tribunal’s view, in the Commissioner’s opinion, does not give proper weight to the special role the Commissioner and the OAIC play in administering and oversighting the FOI Act. A regular activity of the OAIC is to discuss with agencies and applicants the statutory requirements for FOI requests, and features of requests or applicant behaviour that can have an unreasonable workload impact on agencies or be distressing to agency employees. That is done with a view to promoting the objects of the FOI Act, and facilitating public access to government information, rather than restricting FOI access rights.

12.40 An agency can decide to process a person’s access request to which a declaration would otherwise apply.

12.41 If a person to whom a declaration applies approaches the Information Commissioner for permission to make an access request, the OAIC will discuss the nature of any proposed request with the applicant and possibly with the agency, with a view to examining whether the request raises a new issue or can be seen to be a continuation of the access actions that led to the declaration being made.

12.42 The Information Commissioner will generally publish reasons for making a declaration, but will generally not publish reasons for not making a declaration (this may be reported in the OAIC Annual Report).

12.43 Published reasons may either name the person concerned or identify them using a pseudonym. If the person is not named, the declaration may provide that an agency named in the declaration, in performing functions or exercising powers under the FOI Act, may disclose the person’s name to another agency or minister to which the FOI Act applies.

Making, revoking or varying a vexatious applicant declaration

12.44 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)).

12.45 A vexatious applicant declaration may be revoked or varied (s 33 of the Acts Interpretation Act 1901).

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Review

12.46 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).[32]

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Footnotes

[1]Department of Defence and ‘W’ [2013] AICmr 2 [18].

[2] In Re Sweeney and Australian Information Commissioner & Ors [2014] AATA 531 [90]-[97] (hereafter Re Sweeney and Australian Securities and Investments Commission), the Tribunal considered the purpose of a person’s FOI requests in deciding to make a declaration.

[3]Department of Defence and ‘W’ [2013] AICmr 2 [12].

[4] See Re Sweeney and Australian Securities and Investments Commission [81].

[5]Australian Securities and Investments Commission and Sweeney [2013] AICmr 62 [15].

[6]Freedom of Information (Charges) Regulations 1982, reg 5(1).

[7] See Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398 [12]; and Attorney-General v Tareq Altaranesi [2013] NSWSC 63 [16].

[8]Re Sweeney and Australian Information Commissioner and Australian Prudential Regulation Authority (Joined Party) [2014] AATA 539 [48]-[50] (hereafter Re Sweeney and Australian Prudential Regulation Authority).

[9] See for example, Commonwealth Ombudsman and ‘S’ [2013] AICmr 31 [10] (seven FOI requests plus internal review requests).

[10] See for example, Department of Defence and Ronald Francis [2014] AICmr 68 [12].

[11]Department of Defence and Ronald Francis [2014] AICmr 68 [34]; and below at [12.37]-[12.39].

[12] Macquarie Online Dictionary 2013.

[13]Department of Defence and ‘W’ [2013] AICmr 2 [31]; Commonwealth Ombudsman and ‘S’ [2013] AICmr 31 [22]; Comcare and Price [2014] AICmr 24 [19].

[14] In Re Sweeney and Australian Securities and Investments Commission [57] the AAT, while affirming the objective test, commented that ‘an individual or employee must be shown to have felt harassed and/or intimidated in fact’. This evidence can be presented in an agency submission, by way of description of the agency’s experience of the person’s access actions.

[15]Department of Defence and ‘W’ [2013] AICmr 2 [28]-[32]; Comcare and Price [2014] AICmr 24 [16]-[20]; Re Sweeney and Australian Securities and Investments Commission [60].

[16]Commonwealth Ombudsman and ‘S’ [2013] AICmr 31 [16]-[18].

[17]Commonwealth Ombudsman and ‘S’ [2013] AICmr 31 [19]-[20].

[18]Ford v Child Support Registrar [2009] FCA 328.

[19]Department of Defence and ‘W’ [2013] AICmr 2 [33]; Comcare and Price [2014] AICmr 24 [21].

[20]Australian Securities and Investments Commission and Sweeney [2013] AICmr 62 [43], [49].

[21] These factors may be relevant also to the exercise of the discretionary power to make or not make a declaration. 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.

[22]Australian Securities and Investments Commission and Sweeney [2013] AICmr 62 [16]-[18].

[23]Department of Defence and ‘W’ [2013] AICmr 2 [38]-[42]; Comcare and Price [2014] AICmr 24 [20]-[22].

[24]Department of Defence and Ronald Francis [2014] AICmr 68 [13], [30].

[25]Department of Defence and ‘W’ [2013] AICmr 2; Comcare and Price [2014] AICmr 24.

[26]Department of Defence and ‘W’ [2013] AICmr 2; Comcare and Price [2014] AICmr 24.

[27]Commonwealth Ombudsman and ‘S’ [2013] AICmr 31.

[28]Australian Securities and Investments Commission and Sweeney [2013] AICmr 62; Australian Prudential Regulation Authority and Sweeney [2013] AICmr 63.

[29]Department of Defence and Ronald Francis [2014] AICmr 68.

[30]Re Sweeney and Australian Securities and Investments Commission.

[31]Re Sweeney and Australian Securities and Investments Commission [105].

[32] Declarations made by the Commissioner were reviewed by the AAT in Re Sweeney and Australian Securities and Investments Commission and Re Sweeney and Australian Prudential Regulation Authority.

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