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Australian Securities and Investments Commission and Sweeney [2013] AICmr 62 (9 August 2013)

Declaration and reasons for declaration made by Australian Information Commissioner, Professor John McMillan

Applicant: Australian Securities and Investments Commission

Respondent: Phillip Charles Sweeney

Decision date: 9 August 2013

Application number: RQ12/00364

Catchwords: Freedom of information — Vexatious applicant declaration — Whether applicant should be declared a vexatious applicant — Whether applicant has repeatedly engaged in access actions that involve an abuse of process — Whether the access actions unreasonably interfere with the operations of an agency (CTH) Freedom of Information Act 1982 ss 89K, 89L, 89M

Contents

Declaration ..................................................................................................................... 2

Section 89K of the Freedom of Information Act 1982 ............................................... 2

Background .................................................................................................................... 3

Vexatious applicant declarations ................................................................................... 4

Procedure followed in this case ..................................................................................... 8

Has the respondent repeatedly engaged in access actions? ......................................... 9

Has there been unreasonable interference with ASIC’s operations? ........................... 9

Has there been an abuse of process for other reasons? ............................................. 13

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Declaration

Section 89K of the Freedom of Information Act 1982

In accordance with s 89K(1) of the Freedom of Information Act 1982 (FOI Act), I declare Mr Phillip Charles Sweeney to be a vexatious applicant on the basis that he has repeatedly engaged in access actions that involve an abuse of process.

I make this declaration in the following terms:

1. The Australian Securities and Investments Commission is not required to consider:

any request by Mr Sweeney under s 15 of the FOI Act for access to a document

any application by Mr Sweeney under s 54B of the FOI Act for internal review of an access refusal decision,

unless Mr Sweeney has applied in writing to the Information Commissioner to make the request or application and the Information Commissioner has granted written permission for the request or application to be made.

2. This declaration will be in force until 9 August 2014.

Professor John McMillan Australian Information Commissioner 9 August 2013

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Background

1. The Australian Securities and Investments Commission (ASIC) applied to the Office of the Australian Information Commissioner (OAIC) by letter dated 10 February 2012 to have Mr Phillip Charles Sweeney1 declared a vexatious applicant under s 89K of the Freedom of Information Act 1982 (FOI Act).

2. ASIC’s application rests on two separate grounds in s 89L of the FOI Act:

that Mr Sweeney has repeatedly engaged in access actions that unreasonably interfere with ASIC’s operations (s 89L(4)(b)), and

that Mr Sweeney’s repeated access actions involve an abuse of process, in that some requests overlap with other requests, seek access to documents that have already been provided to him or should be in his possession, or contain unfounded assertions and accusations about ASIC officers and administration (s 89L(1)(a)).

3. ASIC’s application referred to 78 access actions by Mr Sweeney over a 14-month period, between 1 November 2010 (when s 89K was inserted by amendment into the FOI Act) and 30 January 2012. Those access actions comprise 67 requests to ASIC for access to documents under the FOI Act and 11 requests for internal review of access refusal decisions. ASIC has since notified the OAIC of a further 35 access actions by Mr Sweeney between 10 February 2012 and 23 June 2013.

4. ASIC explained that it first received a complaint from Mr Sweeney in March 2009 about his former employer and his superannuation entitlements following the cessation of his employment in 2006. Other background points noted briefly in ASIC’s application were a complaint by Mr Sweeney against ASIC to the Commonwealth Ombudsman, an application to the Administrative Appeals Tribunal, an application under the Administrative Decisions (Judicial Review) Act 1977, and a website established by Mr Sweeney that contains strong criticism of ASIC administration and some of its senior officers.

5. Mr Sweeney’s FOI requests to ASIC range broadly. Some relate to his former employment and superannuation entitlements, ASIC’s handling of his complaints and FOI requests, and his earlier correspondence with ASIC. Other requests, and particularly the more recent requests, relate more generally to the conduct of official business by ASIC and contain direct or implicit suggestions of maladministration by ASIC or misconduct of senior ASIC officers. Matters covered by those requests include: financial records, statements and audit reports relating to a range of business entities; ASIC guidelines, memoranda, procedures and policy documents; correspondence between ASIC and other government bodies, including Treasury, the Superannuation Complaints Tribunal and the Commonwealth Ombudsman; documents

1 After publication of the declaration and reasons, Mr Sweeney requested that his name be used in

place of the pseudonym ‘AI’. The declaration and reasons have been amended accordingly.

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regarding complaints received by ASIC about corporate entities; documents regarding the terms of employment of ASIC officers, their financial declarations and correspondence with government; and invoices for legal services.

6. ASIC has responded to Mr Sweeney’s requests as required by the FOI Act (though he has sought internal and Information Commissioner review of some ASIC decisions). ASIC has granted access to a large number of documents. Some requests have been refused wholly or partially on the basis that the material is exempt, an assessed access charge was not paid, or that the documents requested were not accessible under the FOI Act, did not exist or were provided to Mr Sweeney in response to an earlier request.

7. The matters arising in this case are similar to those arising in another application I received in 2011 from the Australian Prudential Regulatory Authority (APRA) to have Mr Sweeney declared a vexatious applicant under s 89K. The principal contention in APRA’s application was that Mr Sweeney has made a large number of FOI requests to APRA that have placed a substantial and unreasonable burden on its operations. I have made an identical declaration in both cases on the same date.2

8. It was appropriate to decide the ASIC and APRA applications together. It is not uncommon that different agencies receive requests from the same applicant for similar records, or may have to consult other agencies during FOI processing, or transfer an FOI request to another agency under s 16 of the FOI Act. A declaration under s 89K may not be fully effective in moderating the impact upon an agency of FOI requests received from a particular applicant unless the declaration applies in identical terms to more than one agency.

Vexatious applicant declarations

9. Section 89K(1) of the FOI Act provides that the Information Commissioner may, by written instrument, declare a person to be a vexatious applicant. The declaration may be made, as in this case, following an application by an agency (s 89K(2)(a)). The agency bears the onus of establishing that a declaration should be made (s 89K(3)). Before making a declaration I must notify the person in relation to whom the application was made (s 89K(4)) and give them an opportunity to make a written or oral submission (s 89L(3)).

10. In Department of Defence and ‘W’ [2013] AICmr 2, I explained the background and scope of the power conferred by s 89K to declare a person to be a vexatious applicant. I observed at paragraph [12]:

The FOI Act confers an important legal right upon members of the public to obtain access to government information. However, that legal right 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.

2 See Australian Prudential Regulatory Authority and Sweeney [2013] AICmr 63.

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11. The s 89K power, introduced into the FOI Act in November 2010, has to be seen in the context of other changes at that time that make it relatively easy for a person to make multiple FOI requests at minimal cost. Those features include that an FOI request can be made by email; an FOI applicant is not required to pay an application fee; no charge is payable for the first five hours of decision-making time; no charge is payable for providing access to an individual’s own personal information; and no charge is payable if an agency fails to notify an applicant of a decision on a request within the statutory time limits in the Act (including any authorised extension).3

12. I also drew attention in Department of Defence and ‘W’ to other matters to be considered in making a s 89K declaration. Guidelines that I have issued under s 93A of the Act state that a declaration ‘will not lightly be made’ as it ‘has the practical effect of preventing a person from exercising an important legal right conferred by the FOI Act’; an agency that applies for a declaration must establish a ‘clear and convincing case’.4 An agency should explain if it has used other provisions of the FOI Act to resolve requests that pose a practical difficulty. These include the power to refuse a request on ‘practical refusal’ grounds;5 and to impose an access charge for the time spent searching for a document and for decision-making time after the first five hours (except for personal information requests).6

13. A vexatious applicant declaration can be made on a number of different grounds that are listed in s 89L. The list in s 89L is not exhaustive but extends, as I noted in Department of Defence and ‘W’, to behaviour that constitutes an ‘abuse of process’ for a particular or repeated access actions. The grounds on which a declaration was made in that case were that ‘W’ had engaged in repeated access actions that harassed staff of the Department of Defence; and that he did not cooperate reasonably with the Department in making access requests that did not contain offensive language and that complied with the requirements of the FOI Act. A declaration under s 89K was made on a similar basis in Commonwealth Ombudsman and ‘S’ [2013] AICmr 31, namely, that ‘S’ engaged in repeated access actions that had the effect of harassing and intimidating staff of the Ombudsman.

14. ASIC’s application in this case rests on a different basis. ASIC’s central concern is that Mr Sweeney has made an unreasonably high number of FOI requests, that he has done so in a manner that creates confusion and complexity, and that some requests are unnecessary or objectionable in tone. The criteria in s 89L that arise in this case are:

3 See FOI Act s 15(2A)(c); and Freedom of Information (Charges) Regulations 1982 (Charges

Regulations) Part 1, Item 1 and reg 5(1)-(3). The right of access to person documents without charge pre-dates the November 2010 amendments.

4 Office of the Australian Information Commissioner, Guidelines issued by the Australian

Information Commissioner under s 93A of the Freedom of Information Act 1982, [12.7]. 5 FOI Act ss 24, 24AA.

6 FOI Charges Regulations, Part 1, Items 1, 5.

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that ‘the person has repeatedly engaged in access actions’(s 89L(1)(a)(i));

‘the repeated engagement involves an abuse of the process for the access action’(s 89L(1)(a)(ii)); and

the repeated access actions are also an abuse of process by ‘unreasonably interfering with the operations of an agency’ (s 89L(4)).

15. Those provisions of the FOI Act reflect a clear policy that the right of access should be used in a sensible and responsible manner, and not in a way that is manifestly unreasonable or involves an abuse of process. However, it may not always be a straightforward matter to distinguish those different uses of the FOI Act, particularly where an agency’s central concern is the high number of FOI requests received from a single applicant. The following features of the FOI Act point to this difficulty:

The FOI Act does not limit the number of access requests a person can make in a given period, nor the number of documents a person can seek in an individual request. The removal of the FOI application fee in 2010 makes it easier for a person to make multiple requests.

There is no special form required to make an FOI request, other than that it must be in writing, state that it is an FOI request, reasonably describe the documents requested, and provide a return address (FOI Act s 15(2)).

The FOI Act does not specify the maximum number of hours that an agency can be required to commit to processing a request. An agency must instead rely on the ‘practical refusal’ mechanism (which is explained below).

The FOI Act is designed to facilitate access requests from members of the public. The stated object of the Act is ‘to facilitate and promote public access to information’, with a view to ‘increasing public participation in Government processes’ and ‘increasing scrutiny, discussion, comment and review of the Government’s activities’ (ss 3(4) and 3(3)).

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)). It is therefore difficult to examine whether a person’s requests are motivated by or serve a public interest purpose.

16. Another interpretive issue arising in this case is the meaning of the phrase in s 89L(4)(b), an ‘abuse of process’ by ‘unreasonably interfering with the operations of an agency’. The phrase has to be construed alongside a similar phrase in s 24AA(1)(a)(i) for deciding whether a ‘practical refusal reason’ exists for refusing a request. The test adopted in that section is whether ‘the work involved in processing the request … would substantially and unreasonably divert the resources of [an] agency from its other operations’.

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17. Though similar, the tests differ in important respects and should be approached in their own terms. The practical refusal test applies to a single request7 that can be refused if it would unreasonably divert the resources of an agency from other operations. The non-exhaustive list of criteria that an agency must have regard to (specified in s 24AA) mostly refer to standard FOI processing steps—locating documents that come within the scope of the request, making a decision on the request, notifying the decision to the applicant, and providing access to the applicant.8 I drew attention in Davies and Department of the Prime Minister and Cabinet [2013] AICmr 10 to other criteria that can be considered, such as the need to redeploy specialist staff in the agency to process a particular request. Before refusing a request on a practical refusal basis an agency must undertake a request consultation process (ss 24, 24AB).

18. A vexatious applicant declaration that relies on s 89L(1)(a) can be made only where a person has ‘repeatedly engaged in access actions’. The applicant’s access actions must constitute an ‘abuse of the process for an access action’. A declaration that a person is vexatious can relieve an agency of its legal obligation under the FOI Act to process further requests from that person. The focus is not so much on the scope of an individual request and the resource burden it imposes, but upon the pattern of an applicant’s behaviour that may be interfering unreasonably with an agency’s operations.

19. In applying s 89L(4)(b), the total number of requests a person makes to an agency in a particular period of time will be an important element in deciding whether those access actions unreasonably interfere with the operations of the agency. However, volume alone cannot decide that issue. The key question is whether the repeated requests from that individual constitute an abuse of process by interfering unreasonably with the operations of the agency. Relevant considerations include the applicant’s approach to engaging in access actions, the impact of the applicant’s repeated actions upon FOI administration in the agency, the impact of the applicant’s access actions upon other work in the agency, any features of the requests or their frequency or pattern that unreasonably increases the burden upon the agency, whether the agency has taken other steps under the FOI Act to lessen the impact of the requests upon its operations, and whether the applicant has cooperated reasonably with the agency to enable efficient FOI processing.

20. It may also be relevant if an applicant’s repeated FOI requests are for access to his or her personal information. As noted at paragraph [11], an agency cannot impose an FOI access charge for personal information requests and cannot therefore use that FOI Act mechanism to exert indirect control on an applicant’s FOI activity.

7 Two or more similar requests may be treated as a single request under s 24(2).

8 See Davies and Department of the Prime Minister and Cabinet [2013] AICmr 10.

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Procedure followed in this case

21. ASIC’s application on 10 February 2012 to have Mr Sweeney declared vexatious included a submission, a table listing the 78 FOI access and internal review requests Mr Sweeney made between 1 November 2010 and 30 January 2012, copies of those requests and ASIC’s response to many of them. By letter dated 14 August 2012, ASIC provided an amended submission in a form that could be released to Mr Sweeney for comment. The submission and table were provided by the OAIC to Mr Sweeney by letter dated 21 August 2012. He was invited to make a submission in reply.

22. Mr Sweeney responded briefly in letters on 22 and 23 August and 11 September, and in a separate and lengthy response on 11 September 2012. His submission did not directly address the points ASIC made in its submission about the number of FOI requests he had made, nor the grounds for a vexatious applicant declaration in s 89L. The major theme of his submission was that he was a victim of superannuation fraud by the trustees of a regulated superannuation fund to which he belonged; he had made determined efforts since 2006 to obtain documents and information from the trustees; he had approached ASIC and APRA to assist him to obtain information and investigate the trustees; ASIC and APRA had failed in that duty, to the point that ASIC officers had acted unlawfully, breached the code of conduct applying to public officials and committed the tort of misfeasance in public office; and that Mr Sweeney’s FOI requests to ASIC were part of a ‘five year quest for justice’ aimed at exposing this serious administrative failure and misconduct by the trustees and government agencies. He referred to a website that he had established to alert the public to fraudulent conduct by superannuation trustees and to complicit behaviour by public servants.

23. Mr Sweeney also submitted that ASIC’s application to have him declared a vexatious applicant was actuated by malice in order to silence him (‘shoot the messenger’) and in response to a superannuation industry compliance test he had conducted (‘Australia’s first’). If ASIC was under-resourced to deal with his FOI requests, the more appropriate solution would be to provide additional resources to ASIC and not restrict the exercise of his legal rights under the FOI Act. Mr Sweeney commented that ‘I have been willing to pay [FOI] charges when requested and for requests that would take more than five hours to process.’

24. Following ASIC’s original submission in February 2012, it has written to the OAIC on six further occasions to provide copies of a further 35 FOI access and internal review requests it has received from Mr Sweeney, as well as other letters.9 The OAIC wrote to Mr Sweeney on 9 July 2013 to inform him that ASIC had provided this additional information, and inviting any submission he wished to make. He responded in three submissions on 16 and 23 July 2013.

9 ASIC emails to the OAIC dated 2 and 6 August 2012, 28 March, 5 April, 18 April, 16 May, 21 May

and 27 June 2013.

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His contentions were that his FOI applications to ASIC were ‘for a meritorious purpose in the public interest’; that his FOI requests enabled him to gain evidence for a submission that he was making to a Senate inquiry about unlawful conduct by ASIC officers;10 and that ASIC wished to block his right of access and ‘shoot the whistleblower’. Attached to the submissions were submissions Mr Sweeney had made to the Senate inquiry and to ASIC.

Has the respondent repeatedly engaged in access actions?

25. The first requirement of which I must be satisfied is that Mr Sweeney ‘has repeatedly engaged in access actions’ relevant to ASIC (s 89L(1)(a)(i)). ‘Access action’ is defined in s 89L(2), and includes making an FOI request and making an application for internal review.

26. ASIC has notified the OAIC that it received 78 FOI and internal review requests from Mr Sweeney between 1 November 2010 and 30 January 2012, and a further 35 since that date. Mr Sweeney has not queried those figures.

27. I am satisfied that Mr Sweeney has repeatedly engaged in access actions directed at ASIC.

28. ASIC also submitted that a person who makes FOI requests that are identical or closely similar to earlier requests could be found to have ‘repeatedly engaged in access actions’. It is unnecessary for me to resolve that issue, but I observe that it may not commonly arise under s 89L(1)(a). The issue ASIC raises can instead be taken up (and, perhaps, more appropriately) under s 89L1(1)(b), which enables the Information Commissioner to make a declaration where ‘a particular access action in which [a] person engages involves … an abuse of the process for that access action’.

Has there been unreasonable interference with ASIC’s operations?

29. The issue next arising is whether Mr Sweeney’s repeated access actions constitute an ‘abuse of process’ by ‘unreasonably interfering with the operations of an agency’ (s 89L(4)(b)).

Submissions

30. ASIC’s submission was that ‘the volume, nature and manner of making of access applications by [Mr Sweeney] has the effect of unreasonably interfering with ASIC’s operations’.

31. ASIC regarded the volume of Mr Sweeney’s requests and correspondence about requests as ‘extraordinary, and excessive’. As noted earlier, ASIC

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The inquiry is being conducted by the Senate Economics References Committee into ‘The performance of the Australian Securities and Investment Commissioner, with particular reference to … (e) the protections afforded by ASIC to corporate and private whistleblowers’.

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received 78 access and internal review requests from Mr Sweeney during a 14 month period. A further 35 requests have been notified to the OAIC since February 2012.

32. Mr Sweeney’s requests make up a high proportion of all FOI requests received by ASIC. ASIC received 67 FOI requests from Mr Sweeney over 14 months to 10 February 2012. By way of comparison, ASIC received 194 FOI requests in total from all FOI applicants in the 2010-11 financial year.

33. ASIC’s February 2012 submission explained the impact Mr Sweeney’s access actions had on the work of four of its officers. Each of the officers had other operational responsibilities but were required to play a role in processing Mr Sweeney’s requests. Their responsibilities variously included drafting correspondence for ASIC Commissioners and other senior officers in responding to Ministers, government officials and the Ombudsman; determining applications to ASIC under the Corporations Act; actioning complaint and breach notifications; contributing to policy projects; and managing and appearing in court and tribunal cases in which ASIC is a party. ASIC estimated that the four officers had, respectively, spent approximately 5 hours per week since July 2011 processing Mr Sweeney’s requests; approximately 56 hours processing seven of Mr Sweeney’s requests; an average of 6 hours per week since July 2011 processing Mr Sweeney’s requests; and an average of 12 hours per week since February 2011 on this task. ASIC stated that this processing work had impaired the ability of those officers to complete other operational work and meet work deadlines. Finally, ASIC stated that the work of other officers had been affected in the same way.

34. Another theme in ASIC’s submission was that Mr Sweeney’s requests, because of their frequency and nature, had ‘a tendency to create confusion and introduce unnecessary complexity’. This added to ASIC’s processing burden. This was illustrated in the table accompanying ASIC’s submission, which analysed Mr Sweeney’s 78 requests: ASIC submitted that 38 of those requests included a complaint; 20 requested correspondence previously sent; and 13 repeated an earlier FOI request. Other examples were given in ASIC’s submission of requests made by Mr Sweeney for correspondence between him and ASIC and for FOI acknowledgement letters ASIC had sent to him. Examples were also given of FOI requests that were combined with comments about ASIC administration and complaints against named officers, or requests for an ASIC decision or item of correspondence to be explained or a document to be created.

Inspection of documents

35. I have examined Mr Sweeney’s FOI and internal review requests to ASIC. For the most part they are direct and clearly stated. The requests are headed ‘Request for documents under the Freedom of Information Act 1982’. The more recent requests often include a sub-heading at the end of the letter, ‘The Documents I Seek’.

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36. Many requests contain a reasonable description of the documents requested. Some refer specifically to correspondence of a particular date between named people. Some others provide a reasonable description of the subject or type of document requested. The requests generally have a moderate tone, even when combined with complaints or allegations against ASIC or Mr Sweeney’s former employer or the superannuation trustees.

37. Some of the requests are not straightforward. They describe the documents that are requested in a manner that includes an assumption or is coloured by Mr Sweeney’s broader campaign to remedy injustice in superannuation and corporate regulation. The following are examples:

A request dated 14 June 2012 for a copy of a letter from an ASIC Commissioner to a Treasury officer containing the following: ‘Could you also please provide a copy of the response to this request for documents under the FOI Act to the Minister Responsible for ASIC … [He] has asked me to provide him with evidence to support my allegation of Misconduct in Public Office by [X] … The letter …. certainly supports this allegation.’

A request dated 14 June 2012 for documents ‘that would disclose the requirement of Trustees to advise members of their Funds in the Product Disclosure Statements that they have a right to have access to prescribed “trust documents” … and what these prescribed “trust documents” are’.

A request dated 8 June 2013 for documents that could be classified by a particular description ‘that ARE NOT publically available on the Commonwealth Superannuation Corporation website and thus could in theory be altered or tampered with since they would be “private” documents and not documents in the public domain and publically available online’.

A request dated 19 June 2013 for documents that confirm that Mr Sweeney has a beneficial interest in one of a number of named funds.

38. It is likely that the FOI processing burden attributable to Mr Sweeney’s requests was onerous in some months. For example, in June 2012 Mr Sweeney made 9 FOI requests, including 2 requests on 8 June seeking copies of 14 letters he had written to ASIC officers during 2009-11; and 2 requests on 14 June that were 6 and 8 pages in length (the FOI request component of both those letters was one paragraph only). Another FOI request on 14 June was repeated on 19 June.

39. ASIC’s submission included its response to most of Mr Sweeney’s 78 requests. My general impression, reading those responses, is that ASIC sought to administer each request in accordance with the provisions of the FOI Act. An explanation was given in appropriate cases of the requirements necessary for a

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valid FOI request, and of the consultation options available to Mr Sweeney to reframe a request to comply with FOI Act requirements. Two examples of a considered ASIC response were, first, an 8 page response on 28 March 2011 to a one-page request received on 25 February 2011; and, secondly, a response to a two-paragraph request for ‘letters, emails, submissions and other correspondence between (to and from) ASIC and Parliamentary Joint Committee on Corporations and Financial Services between 1 July 2010 and 14 October 2011’ that entailed the preparation of a 16-page schedule listing 72 documents plus 104 attachments.

40. I note also that ASIC considered on occasions whether to impose an access charge. Sometimes this was done; sometimes a decision was made to waive charges; and charges could not be imposed for some other requests because of the decision that was made (for example, that the documents requested did not exist or were already public). On another occasion on 24 November 2011, a decision was made to treat five requests as a single request and to refuse the request on a ‘practical refusal’ basis under s 24AA.

Findings

41. I am satisfied on balance that the pattern of Mr Sweeney’s repeated access actions since November 2010 constitutes an abuse of process that has and continues to interfere unreasonably with ASIC’s operations. A number of features of Mr Sweeney’s request pattern make it appropriate that I make a vexatious applicant declaration to kerb his use of the FOI Act in relation to ASIC.

42. The volume of Mr Sweeney’s requests is high and places a considerable administrative burden on ASIC. That burden is higher than is warranted by reason of the idiosyncratic nature of some requests and the high number that is sometimes made in a short period.

43. In reaching that finding I have taken into account that, viewed individually, Mr Sweeney’s requests are not generally offensive or objectionable in nature, and are more temperately expressed than some seen by the OAIC from other applicants. Nor is it contrary to the spirit of the FOI Act that an FOI request contains additional commentary or complaints by the requester. These sometimes provide context for a request, but in any case are compatible with the stated objects of the FOI Act, that include scrutiny, comment and review of government activity. However, the way a request is framed can confuse or complicate the processing of the request. When this is a recurrent feature of many requests it is a relevant factor in deciding if the pattern of a person’s requests interferes unreasonably with an agency’s operations.

44. Caution is needed in evaluating the public interest dimension of a person’s FOI requests. Even so, the inescapable impression in Mr Sweeney’s case is that many of his requests are aimed at re-agitating a grievance of long-standing that has been acknowledged and investigated by ASIC and other agencies,

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albeit not to his satisfaction. It is inappropriate that the FOI Act should become the platform to support the immoderate prolongation of a personal grievance. The impact and inconvenience of Mr Sweeney’s requests upon ASIC operations is disproportionate to his campaign for ‘justice’ in relation to his own affairs and more widely.

45. The declaration in this case is framed in a way that reduces but does not eliminate Mr Sweeney’s opportunity to make FOI requests. If Mr Sweeney wishes to make a request under the FOI Act to ASIC for access to documents or for internal review of an access refusal decision, he must first apply in writing to the Information Commissioner who will decide whether to grant permission for the request to proceed. The declaration will be in force for one year. Mr Sweeney will be able thereafter to apply directly to ASIC under the FOI Act. It is to be hoped that the same request pattern would not recur, but if it did consideration would be given to a fresh declaration under s 89K.

Has there been an abuse of process for other reasons?

46. As noted in paragraph [2], ASIC submitted that Mr Sweeney’s access actions involved an ‘abuse of process’ beyond unreasonably interfering with ASIC’s operations. Many of the matters that ASIC referred to are ones that I have already considered in the earlier discussion (the high volume of requests, the repetition of similar requests and the commingling of Mr Sweeney’s FOI requests with other complaints and assertions). I have taken a different and broader view of the phrase ‘unreasonably interfering with the operations of an agency’ than was taken in ASIC’s submission.

47. It is therefore unnecessary for me to consider in depth the particular points that ASIC made in this second submission. However, I will comment that I have not accepted, in the terms submitted, some of the criticisms ASIC makes of Mr Sweeney’s request pattern.

48. The number of requests that were repeated or overlapped with other requests would not, viewed separately, have constituted an abuse of process. To a point, inconvenience and messiness in FOI administration can be an inescapable element. However, in Mr Sweeney’s case, this element formed part of a larger pattern of access actions that unreasonably interfered with an agency’s operations.

49. The same can be said of Mr Sweeney’s FOI requests that contained complaints or suggestions of misconduct by ASIC officers. ASIC’s submission comments that ‘The FOI Act is not intended to provide a vehicle for applicants to subject agency officers to such correspondence’. I do not accept that as an independent ground on which a vexatious applicant declaration can be made, short of conduct that harasses or intimidates agency employees (FOI Act s 89L(4)(a)). I have, however, accepted above that the style of Mr Sweeney’s requests, seen in the context of the large number of requests he has made to

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ASIC, is a relevant factor in deciding whether his access actions unreasonably interfered with the operations of ASIC.

Conclusion

50. I am satisfied that Mr Sweeney has engaged in repeated access actions that involve an abuse of process, by unreasonably interfering with the operations of ASIC. Accordingly, I make a vexatious application declaration against Mr Sweeney in the terms stated at the beginning of these reasons.

Prof. John McMillan Australian Information Commissioner

9 August 2013

Review rights

An application may be made to the Administrative Appeals Tribunal for a review of a decision under s 89K of the Information Commissioner to make a vexatious applicant declaration.

An application to the AAT must be made within 28 days of the day on which the applicant is given the s 89K decision (s 29(2) of the Administrative Appeals Tribunal Act 1975). An application fee may be payable when lodging an application for review to the AAT. The current application fee is $816, which may be reduced or may not apply in certain circumstances. Further information is available on the AAT’s website (www.aat.gov.au) or by telephoning 1300 366 700.