Phillip Sweeney and Australian Information Commissioner Australian Prudential Regulation Authority JOINED PARTY
[2014] AATA 539
[2014] AATA 539
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/4727
Re
Phillip Sweeney
APPLICANT
And
Australian Information Commissioner
RESPONDENT
And
Australian Prudential Regulation Authority
JOINED PARTY
DECISION
Tribunal Deputy President J W Constance
Date 6 August 2014 Place Melbourne The decision of the Australian Information Commissioner made 9 August 2013 is affirmed.
............................[sgd]............................................
Deputy President J W Constance
CATCHWORDS
FREEDOM OF INFORMATION – vexatious applicant declaration – whether applicant engaged in access actions – repeated access actions – whether engagement involved an abuse of process for the access action – whether Tribunal should exercise discretion to declare applicant vexatious – importance of right of access to information – decision under review affirmed
LEGISLATION
Freedom of Information Act 1982 (Cth) ss 15, 24A, 24AA, 89K, 89L, 89M, 89N, 93A
CASES
Associated Provincial Picture Houses, Limited v. Wednesbury Corporation [1948] 1 K.B. 223
Edelsten v Wilcox and Federal Commissioner of Taxation (1988) 15 ALD 546
Kruger and Others v. The Commonwealth of Australia (1997) 190 CLR 1
Shi v Migration Agents Registration Authority (2008) 235 CLR 286Sweeney and Australian Information Commissioner & Ors [2014] AATA 531
SECONDARY MATERIALS
Guidelines issued by the Australian Information Commissioner under s 93A of the Freedom of Information Act 1982
Macquarie Dictionary
REASONS FOR DECISION
Deputy President J W Constance
6 August 2014
INTRODUCTION
By agreement between the parties this matter was heard with application number 2013/4516 in which the Australian Securities and Investments Commission (“the Commission”) is the Other Party. The Australian Information Commissioner (“the Commissioner”) is the Respondent in each matter.
It was agreed also that the evidence-in-chief of Mr Sweeney be taken as evidence in both matters. Separate reasons for decision have been prepared, but as the issues in each matter are the same, parts of these reasons are replicated in the other matter.[1]
[1] [2014] AATA 531.
Over the past seven years Mr Sweeney has been seeking to expose what he believes is fraudulent conduct involving the administration of a trust established in 1913 for the benefit of the employees of a major Australian company and their dependants. He has been dogged in his pursuit of documents which may establish that such a fraud has been committed. It may transpire that Mr Sweeney becomes well-known as a whistle-blower who persevered, notwithstanding the many obstacles he had to overcome. However it is not necessary for the purposes of this application to consider whether Mr Sweeney’s concerns are well-founded.
In pursuit of documents regarding the trust, Mr Sweeney sought the assistance of the Other Party, the Australian Prudential Regulation Authority (“the Authority”).
Between 1 November 2010 and 9 August 2013 Mr Sweeney made 118 applications to the Authority for, or in relation to, the production of documents in accordance with the Freedom of Information Act 1982 (Cth). Initially Mr Sweeney sought documents in relation to the trust and, later, documents relating to action taken by the Authority in relation to the administration of the trust.
On 9 August 2013, following an application by the Authority the Commissioner made a declaration in the following terms:
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 Prudential Regulation Authority 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.[2]
[2] Exhibit R1, T1 p.2.
Mr Sweeney seeks a review of the Commissioner’s decision. For the reasons which follow the decision will be affirmed.
LEGISLATION
Section 89K of the Act provides, in part:
(1) The Information Commissioner may, by written instrument (a vexatious applicant declaration), declare a person to be a vexatious applicant.
Note 1: Section 89L sets out the grounds on which a declaration may be made.
Note 2: For variation and revocation of the instrument, see subsection 33(3) of the Acts Interpretation Act 1901.
(2) The Information Commissioner may make a declaration:
(a)on the application of an agency or Minister; or
(b)on the Information Commissioner's initiative.
(3) If an agency or Minister has applied for a declaration, the agency or Minister has the onus of establishing that the Information Commissioner should make the declaration.
Section 89L provides:
(1) The Information Commissioner may make a vexatious applicant declaration in relation to a person only if the Information Commissioner is satisfied of any of the following:
(a)that:
(i) the person has repeatedly engaged in access actions; and
(ii) the repeated engagement involves an abuse of the process for the access action;
(b)a particular access action in which the person engages involves, or would involve, an abuse of the process for that access action;
(c) a particular access action in which the person engages would be manifestly unreasonable.
(2) A person engages in an access action if the person does any of the following:
(a)makes a request;
(b) makes an application under section 48;
(c) makes an application for internal review;
(d) makes an IC review application.
(3) The Information Commissioner must not make a declaration in relation to a person without giving the person an opportunity to make written or oral submissions.
(4) In this section:
abuse of the process for an access action includes, but is not limited to, the following:
(a)harassing or intimidating an individual or an employee of an agency;
(b)unreasonably interfering with the operations of an agency;
(c)seeking to use the Act for the purpose of circumventing restrictions on access to a document (or documents) imposed by a court.
Section 89M provides:
(1) A vexatious applicant declaration has effect in accordance with the terms and conditions stated in the declaration.
(2) Without limiting subsection (1), a vexatious applicant declaration in relation to a person may provide that:
(a)an agency or Minister may refuse to consider any of the following if made by the person without the written permission of the Information Commissioner:
(i) a request;
(ii) an application under section 48 (amendment of records);
(iii) an application for internal review; and
(b)the Information Commissioner may refuse to consider an IC review application made by the person.
(3) If a decision is made as mentioned in subsection (2), the agency, Minister or the Information Commissioner (as the case requires) must, as soon as practicable, notify the vexatious applicant of the decision.
Section 89N provides an application may be made to this Tribunal for review of a vexatious applicant declaration.
ISSUES FOR DETERMINATION
The following issues arise for determination.
(a)Has Mr Sweeney engaged in access actions?
(b)If so, has he done so repeatedly?
(c)If so, has that engagement involved an abuse of process for the access action?
(d)If so, should a vexatious applicant declaration be made?
(e)If so, what should be the terms and conditions of the declaration?
It is to be noted that the Authority has the onus of establishing that a declaration should be made.
EVIDENCE AND FINDINGS OF FACT
The evidence of Mr Sweeney
On the basis of the evidence of Mr Sweeney I am satisfied of the facts set out in the Introduction to these reasons and the following paragraphs 14 to 25 inclusive.
Mr Sweeney signed an employment contract with the company in 1985. Prior to his signing the contract the company had represented to him that its superannuation fund was an industry leading fund and that it included the payment of pension benefits. This representation played a role in his decision to commence employment with the company.
Mr Sweeney ceased working for the company in 2006. Some months later he received a lump sum payment from the trustee of the fund and was told that this was his only entitlement. As he did not receive a pension he became concerned to know the exact terms of the trust that established the fund of which he was a member. He was particularly concerned to ascertain the terms of the trust at the time he signed his contract of employment because of the representations which had been made to him leading up to that signing. He wrote to the trustee on numerous occasions seeking access to the trust documents. He was told that he no longer had a beneficial interest in the trust and he was not given access to the documents he requested.
Mr Sweeney lodged a complaint with the Superannuation Claims Tribunal. He was informed that the Tribunal did not have jurisdiction to deal with his complaint. He then wrote to the Commonwealth Ombudsman who confirmed the advice he had been given by the Tribunal. He was advised by an officer of the Tribunal to contact the Authority. He did so.
Following representations by the Authority to the trustee, Mr Sweeney received a letter from the Secretary of the fund advising him that he could inspect a copy of the latest deed of trust. As the Secretary had not offered to allow Mr Sweeney to copy the deed, Mr Sweeney again contacted the Authority. He was then advised that he should contact the Commission as it now had control over the disclosure obligations of trustees.
In about March 2009 Mr Sweeney advised the Commission that he was seeking access to the deeds of trust in force in March 1985, the time when he signed his contract of employment. In August 2009 Mr Sweeney was advised by the trustee that searches had been made and that not all the deeds could be located. A copy of a deed signed on 26 August 1986, being a date after he commenced employment by the company, was provided.
As he had not been provided with the documents he was seeking, Mr Sweeney wrote to the Authority expressing his concern that the trustee of the fund was claiming that most of the deeds of the trust could not be located. It was at this stage that Mr Sweeney began using the processes provided by the Freedom of Information Act to try to determine how his enquiry to the Authority had been dealt with. As a result of his applications under the Act Mr Sweeney learned that the trustee had previously advised the Authority that Mr Sweeney was welcome to inspect all of the deeds, including the original deed of trust signed in 1913.
Mr Sweeney wrote to the trustee seeking access to the documents. Despite the trustee’s earlier advice, access was refused. He then wrote to the Authority, advising that he had not been given access to the deeds. Sometime later he received from the trustee copies of deeds dated after 1985. He did not receive copies of deeds executed prior to 1986. By other means Mr Sweeney obtained a copy of a booklet setting out the terms of the 1913 deed. He also obtained a copy of a booklet issued by the trustees in 1974 which indicated that the trust had been changed to provide for the payment of pensions to former employees and their widows.
By the end of 2010 Mr Sweeney had formed the view that the trustee had committed an offence in failing to give him access to all of the trust deeds. He believed that criminal offences had been committed. He then sought to use the Freedom of Information Act to ascertain if the Commission had in its possession copies of the deeds and had failed to advise him of this. If the Commission did not have copies of the deeds he wished to ascertain why it had not required the trustees to provide them. In his words “I was trying to prod [the Commission] into taking some action to actually get me these deeds.”[3] As part of this process he sought copies of documents lodged with the Commission by the auditors of the fund as he believed the audit should disclose any failure of the trustee to comply with its statutory obligations.
[3] Transcript 16/6/14 p.54.
At the time of the hearing Mr Sweeney had not been able to obtain a copy of the original 1913 deed or a complete set of the amending deeds.
On occasions the Authority has notified Mr Sweeney that there would be a fee payable for the production of documents. On some occasions he paid the fee requested. On others he decided not to continue with his application. Fees were imposed on 10 occasions; fees of approximately $1000.00 were paid.
On occasions Mr Sweeney was asked by the Authority for an extension of time in which to reply with his request; on these occasions he agreed.
On 19 December 2013 (i.e. during the time the declaration was in operation) the Authority received a request under the Act from Mr Sweeney using a pseudonym. The request was addressed to the “Freedom of Information Officer – APRA” and was signed “007”. Under the signature appeared the words “The name is Bond – James Bond – 007 {Licensed to Kill}”.[4]
[4] Exhibit R1/4727 ST47.
The evidence of Mr Sun, Principal Solicitor
Mr Sun is the Principal Solicitor, Litigation, Legal Group within the Supervisory Support Division of the Authority. He provided a statement dated 6 June 2014[5] and gave evidence.
[5] Exhibit OP5/4727.
I am satisfied that Mr Sun was an honest witness who gave his evidence to the best of his recollection. On the basis of his evidence I make the findings of fact set out in paragraphs 28 to 38 inclusive.
The Authority does not have any employees whose sole duty is to deal with access actions under the Act. Those employees who do deal with Freedom of Information matters work under the supervision of the Manager, Compliance Management. A solicitor employed by the Authority is involved in checking complex decisions made in relation to requests for access to documents.
Prior to the making of the declaration on 9 August 2013 Mr Sweeney lodged 123 access actions with the Authority, of which 5 were lodged prior to 1 November 2010 and 118 were lodged after that date. Since the making of the declaration Mr Sweeney has made one application to the Commissioner for permission to apply to the Authority. Permission was not given.
During the period from 1 November 2010 to 21 February 2013 Mr Sweeney made 101 requests for access to documents and engaged in 17 other access actions. In the same period the Authority received 45 requests from all applicants other than Mr Sweeney.
Volume of correspondence
Annexure A to Mr Sun’s statement lists correspondence and copy correspondence from Mr Sweeney to the Authority and its employees since September 2010 and identifies approximately 220 items of correspondence. The last letter listed was dated 10 May 2014.
Under the heading “Analysis of correspondence” Mr Sun stated:
A substantial proportion of Mr Sweeney's letters have related to access actions directed at APRA, thereby exacerbating the workload imposed on APRA as a result of Mr Sweeney's access actions.[6]
When questioned as to the percentage of this correspondence which related to applications under the Act, Mr Sun could not say,[7] nor could he say how much correspondence was received from Mr Sweeney after the declaration was made.[8]
[6] Exhibit OP5/4727 para 25.
[7] Transcript 19/06/14 p.368.
[8] Transcript 19/06/14 p.368.
Interference with the operations of the Authority
Mr Sun confirmed that the workload imposed on the Authority by Mr Sweeney's applications was as set out in the Commissioner’s reasons for making the declaration. The relevant paragraphs read:
23. As to workload, APRA estimated in November 2011 that it had spent 260 hours processing the 29 FOI requests it had received and that it expected to spend more time finalising some of those requests. In the same period it had spent 356 hours processing the 17 FOI requests from other applicants. In two subsequent letters APRA advised that it has spent a further 450 hours processing Mr Sweeney's access actions between 29 November 2011 and 21 May 2012.
…
25. APRA’s November 2011 application explained the impact Mr Sweeney's access actions had on the work of its legal and other staff. APRA advised that it had one dedicated FOI officer who was a lawyer in the Advice and Drafting Section of APRA’s Legal Group. That person had other duties in addition to handling FOI requests that extended to the general provision of legal advice. APRA’s view was that it was appropriate for an agency of its nature and size (592 staff) to rely upon a single officer with part-time responsibility for FOI, based on the historical pattern of FOI requests and projections as to likely levels of access applications. It noted that much of the information it holds is of a commercially sensitive nature relating to the entities that APRA supervises, and that the confidentiality of this information is protected by a secrecy provision in the Australian Prudential Regulation Authority Act 1998 s 56.
26. APRA advised that the repeated high number of access actions by Mr Sweeney meant that the FOI officer had extremely limited capacity to carry out other duties attached to her role. Six other lawyers in the agency had provided assistance in processing FOI requests; this interfered with their capacity to undertake other legal functions. Mr Sweeney's requests were said to have a similar impact on the work of other staff, particularly staff engaged in frontline supervision of one of the entities nominated in many of Mr Sweeney's requests (17 of the 29 requests related to that entity). Those staff provided assistance in searching for documents and processing Mr Sweeney's requests. This additional FOI work was interfering with their capacity to undertake their prudential regulation functions.
27. APRA's submission also explained that the impact of Mr Sweeney's access actions was particularly felt after August 2011. Twenty-two of Mr Sweeney's 29 FOI requests were made between 25 August and 22 November 2011.[9]
[9] Exhibit R1/4727 T1 pp. 7-8.
In the 2012/13 financial year the Authority spent 168 hours (4.5 working weeks) dealing with matters raised by Mr Sweeney. From 1 July 2013 to 7 May 2014 the Authority spent 221 hours (5.9 weeks) attending to matters raised by him. In providing this information Mr Sun included time spent in processing applications from persons (other than Mr Sweeney) who Mr Sun believes were acting on Mr Sweeney’s behalf. He was unable to say how much of this time was spent on requests and applications made by Mr Sweeney personally[10]; in giving his evidence he was relying on figures given to him by others.
[10] Transcript 19/06/14 p. 365.
The strain on the Authority’s resources has continued after the Commissioner made the declaration on 9 August 2013. This has been caused by reason of access actions in the name of the persons other than Mr Sweeney, who Mr Sun believes were acting on behalf of Mr Sweeney.
Mr Sun was informed by the manager of the Authority’s FOI officers that the Authority “has identified as risks to the organisation the risk of losing staff who are obliged to spend significant time in dealing with Mr Sweeney’s access actions and correspondence.”[11]
Mr Sun had no knowledge of the nature of this risk other than what he had been told. He had no means of quantifying the significance of the strain placed on the Authority by Mr Sweeney’s access actions.[12]
[11] Exhibit OP5/4727 para. 40.
[12] Transcript 19/06/14 p. 369.
Impact of Mr Sweeney's conduct on employees of the Authority
Mr Sun made the following statement in relation to the impact of Mr Sweeney's conduct:
Two of APRA's FOI officers have informed me that the totality of Mr Sweeney's conduct, and in particular:
(a)lodging a very large number of access actions;
(b)the tenor and content of the access actions lodged by Mr Sweeney;
(c)lodging the pseudonymous access action under the name 'James Bond 007 - licensed to kill';
(d)causing or being involved in the lodgement of the relevant third-party access actions after the vexatious applicant declaration was made; and
(e)sending a very large volume of correspondence to APRA;
(f)the tenor and content of Mr Sweeney's correspondence, particularly:
(i) the repeated allegations of misconduct made against APRA as an organisation;
(ii) the references to individual APRA officers by name;
(iii) the allegations of misconduct against individual APRA officers;
(iv) from the 'foreshadowing letters': "A false witness will not go unpunished, and he who breathes out lies will not escape" (a quote from Proverbs);
(v) the sending of the 'foreshadowing letters';
(vi) the repeated references in correspondence from Mr Sweeney to heads rolling; and
(vii) the statement that APRA and ASIC ought be referred to as “’dumb’ and ‘dumber’”,
has caused them to feel harassed and concerned.[13]
[13] Exhibit OP5/4727 para 33.
The reference in the preceding paragraph to “foreshadowing letters” is a reference to two letters written in April 2014[14] by Mr Sweeney to the Assistant Commissioner (Complaints), Office of the Legal Services Commissioner in New South Wales. These letters foreshadowed complaints concerning the conduct of two officers of the Authority in relation to these proceedings. Neither officer has ever been a legal practitioner.
[14] Exhibits OP2/4727 and OP3/4727.
CONSIDERATION
Issue 1: Has Mr Sweeney engaged in access actions?
Both the Commissioner and the Authority rely on the conduct of Mr Sweeney since 1 November 2010, when the Act was amended by the insertion of section 89K and the related provisions.
Subsection 89L(2) specifies when a person “engages in an access action”. It includes making “a request”, which is defined to mean an application for access to documents.[15]
[15] Section 15.
It is not in dispute that within the specified period Mr Sweeney has made requests for access to documents to the Authority. On the basis of the evidence of Mr Sweeney and Mr Sun I am satisfied that since 1 November 2010 Mr Sweeney has engaged in “access actions” in accordance with the Act.
Issue 2: Has Mr Sweeney repeatedly engaged in access actions?
On the basis of the evidence of Mr Sun, which is not disputed by Mr Sweeney, I have found that Mr Sweeney has made 118 applications, in respect of each of which he engaged in an access action. These actions occurred over a period of 33 months.
The Macquarie Dictionary defines “repeated” as:
“done, made, or said again and again.”
Applying the ordinary meaning of the word “repeated” I am satisfied that Mr Sweeney has engaged in access actions “repeatedly”. Mr Sweeney does not dispute this.
Issue 3: Has Mr Sweeney’s repeated engagement involved an abuse of the process for the access action?
Subsection 89L(4) sets out a non-exhaustive definition of “abuse of the process for an access action”. It is to be noted that subsection 89L(1) refers to an abuse of the process for “the” access action whereas the definition refers to “an” access action, but it does not appear that this difference is relevant here.
The abuse of process is said to arise from harassment and/or intimidation of employees of the Authority and/or unreasonable interference with its operations. Neither the Commissioner nor the Authority relied on the wider meaning of subsection 89L(4) and it is not necessary to consider this for the purposes of this review.
The Act requires that the repeated engagement involves an abuse of process. The Macquarie Dictionary defines “involve”::
1. to include as a necessary circumstance, condition, or consequence; imply; entail.
2. …
3. to include, contain, or comprehend within itself or its scope.
It need not be shown that all of the conduct in question can be classified as an abuse of process. The ordinary meaning of “involve” does not require this. It is sufficient that some of the access actions can be characterised as an “abuse of the process for an access action”. Had Parliament intended otherwise it would have used the word “is” instead of the word "involves" in subsection 89L(1).
It was argued on behalf of the Authority that “conduct not on its face comprising the lodging of access actions” is relevant in determining whether Mr Sweeney has abused the process for an access action. Reference was made to the many items of correspondence from Mr Sweeney to the Authority. This argument was put on the basis that the definition in subsection 89L(4) is inclusive rather than exhaustive.
This argument overlooks the provisions of subsection 89L(1) which sets out the requirements which must be met before the discretion to make a declaration is enlivened. Subsection 89L(1)(a) requires that it is the engagement in access actions which enlivens the discretion to make a declaration. Consistently, subparagraphs (b) and (c) of the same subsection both refer to “a particular access action” as the basis for the power to exercise the discretion. The subsection states that only if one or more of the conditions set out are satisfied may a declaration be made.
Counsel argued further that paragraphs (a) and (b) of subsection 89L(4) do not include the words “in relation to an access action”. However it is subsection 89L(1) which must be satisfied to enliven the power to exercise the discretion. Under this subsection it is the engagement in access actions which enlivens the discretion. It is an exhaustive provision. Subsection 89L(4) only provides a definition; it does not provide for the exercise of the discretion.
Did Mr Sweeney’s conduct harass or intimidate an individual or an employee of the Authority?
The Macquarie Dictionary defines "to harass" to include "to trouble by repeated attacks" and to "torment."
As harassing and/or intimidating conduct can lead to a person being declared a “vexatious applicant" and a loss of rights under the Act, in my view an individual or an employee must be shown to have felt harassed and/or intimidated in fact and the conduct must be shown to be harassing and/or intimidating on an objective basis. I am satisfied that it is not intended that an applicant could be declared “vexatious” simply because an individual or an employee felt harassed and/or intimidated. The conduct itself must be such that it could reasonably be regarded as harassing and/or intimidating. As it is the conduct which must be shown to involve an abuse of the process, it is not necessary that an intent to harass or intimidate be shown.
The evidence as to harassment and/or intimidation of employees of the Authority is limited. It is necessary for the Authority to show that an individual or an employee was harassed or intimidated. A general allegation that action was harassing or intimidating by its nature is insufficient to meet the definition in subsection 89L(4). The Authority has the onus of establishing that a declaration should be made.
The Authority did not seek to rely on this ground when it applied to the Commissioner for a declaration.
Mr Sun’s evidence that he had been informed by two employees that they felt harassed by Mr Sweeney’s actions and that they were unwilling to give evidence before the Tribunal is insufficient for me to be satisfied that any employee has in fact been harassed or intimidated. Counsel for the Authority put this evidence as being no more than evidence that statements to this effect had been made to Mr Sun.
When he gave evidence Mr Sun was asked by Counsel for the Authority if he had personally observed the effect on employees of dealing with Mr Sweeney. He replied:
Well, I have noticed that as this matter has evolved an increasing frustration and the word “harassment” has been used; but really just frustration and inability to handle work load – other forms of work that they deal with.[16][Emphasis added].
[16] Transcript 19/06/14 p. 354.
Mr Sun referred to the employees being intimidated by the prospect of being cross-examined. This intimidation, if established, is said to be a result of these proceedings, not the repeated engagement in access actions. No further information was provided as to the reasons for the employees’ unwillingness to give evidence. Their evidence would have been of assistance in deciding whether harassment and/or intimidation had in fact occurred.
The Authority also sought to rely on Mr Sweeney’s action in making a request using the pseudonym “James Bond” and the words “Licensed to kill” followed by an email to Mr Sun which included the sentence “But where did ‘James Bond’ come from?” Neither in his written statement nor in his oral evidence did Mr Sun say that he had been either harassed or intimidated. I am not satisfied that Mr Sun was at any time harassed or intimidated by Mr Sweeney.
Counsel also referred me to letters written, and documents filed, by Mr Sweeney in these proceedings and correspondence to the Authority in relation to the proceedings. Some of this correspondence relates to alleged or potential inappropriate conduct of employees of the Authority in the conduct of these proceedings. However, apart from the lack of persuasive evidence that anyone was harassed or intimidated by this correspondence, I am not satisfied that such correspondence was an “access action” within the meaning of the Act. For the reasons I have already stated, subsection 89L(1) requires that engagement in access action or actions be shown to have occurred.
Was Mr Sweeney’s conduct an unreasonable interference with the operations of the Authority?
The Authority contended that Mr Sweeney has embarked on a course of conduct which has unreasonably interfered with the Authority’s operations. It relied upon the following:
·access actions seeking documents previously sought;
·access actions seeking protected documents;
·access actions seeking internal review of decisions not to provide protected documents;
·access actions seeking internal review of decisions not to provide documents not in the Authority's possession;
·access actions seeking documents relating to earlier freedom of information requests made by Mr Sweeney to the Authority;
·access action being used to put the Authority “to the test”.
I am satisfied on the evidence before me that on occasions Mr Sweeney did engage in the conduct set out in this paragraph. Details of individual access actions are contained in the table set out in exhibit OP6/4727 and in exhibit R1/4727, T6 p.97.
Was there interference with the operations of the Authority?
There are several aspects of Mr Sweeney’s conduct which, when viewed as a whole, lead to the conclusion that prior to the making of the declaration it has interfered with the operations of the Authority.
The volume of correspondence from Mr Sweeney to the Authority is significant, although Mr Sun was unable to say how much of the total correspondence could properly be classed as access action. However based on the information in the reasons for the Commissioner’s declaration, which was verified by Mr Sun, I am satisfied that between 29 November 2011 and 21 May 2012, the Authority spent 450 hours processing Mr Sweeney’s access applications. This equates to an average of over 18 hours per week. I also accept his evidence as to the effect on the ability of staff to carry out other duties.
I have taken into account the nature of the action taken by Mr Sweeney as set out in paragraph 60 above. An example of the nature of the conduct is that on at least five occasions in 2012 Mr Sweeney sought documents relating to the processing of requests previously lodged by him.[17]
[17] Exhibit R1/4727, T4 p.239, T6 p.55, T6 p.61, T7 p.5, T7 p.7.
I have also taken into account the evidence of Mr Sun as to the workload imposed on the Authority by Mr Sweeney’s access actions. This is set out in paragraphs 33 and 34 of these reasons.
Considering all these matters I am satisfied that Mr Sweeney’s conduct has interfered with the operations of the Authority.
Was the interfering unreasonable?
The next issue for consideration is to decide whether the interfering with the operation of the Authority was done "unreasonably."
Mr Sweeney argued that the Authority failed to use the powers given to it by the Act to properly manage his applications and that this was the reason for the interference with the Authority's operations. He argued therefore that such interference as was caused was not done unreasonably.
Mr Sweeney referred me to the following means of managing the workload imposed by his applications, which he said the Authority did not use effectively:
·the power to request that he agree to an extension of time in which to respond to particular requests;
·the power to seek an extension of time by the Commissioner if his consent was not forthcoming;
·the power to determine that fees were payable in respect of some applications;
·the power to seek clarification of his requests and to seek that he narrow the scope of requests.
Mr Sweeney argued that the Act itself was inconsistent in prescribing the manner in which the effect on the workload of the Authority should be determined. He referred me to the provisions of sections 24A and 24AA. However these provisions relate to the manner in which an agency may deal with a particular application. Sections 89K-89N deal with an entirely different issue, being the conditions under which an individual may be prevented or restricted from exercising rights to access documents from a particular agency or agencies. There is no inconsistency in these provisions.
I am satisfied that the Authority did not fully utilise the means of managing Mr Sweeney's requests as effectively as it could. For example, it could have made more frequent use of the power to seek extensions of time to respond to requests thereby spreading the workload over a longer period; the imposition of fees may have reduced the work required. However, even taking this into account I have reached the conclusion that the volume, frequency and nature of the access actions were such that Mr Sweeney’s conduct unreasonably interfered with the operations of the Authority and therefore was an abuse of the process for an access action.
On the basis of this conclusion the power to make a “vexatious applicant declaration” is enlivened.
It should be noted that I have reached this conclusion based entirely on the provisions of subsection 89L(4)(a) and (b). No doubt there will be occasions when it will be necessary to consider the wider meaning of the words “abuse of the process for an access action”. It is not necessary to do so in this application.
Issue 4: Should a vexatious applicant declaration be made?
In the circumstances I have determined a declaration may be made[18]; the power to make such a declaration is discretionary.
[18] Subsection 89L(1).
The exercise of discretion given to a decision-maker must be exercised reasonably. A decision exercising discretion will be set aside by a Court when the decision-maker has come to a conclusion "so unreasonable that no reasonable [decision-maker] could ever have come to it".[19]
[19] Associated Provincial Picture Houses, Limited v. Wednesbury Corporation [1948] 1 K.B. 223, 230..
Referring to the judgement in Wednesbury, the High Court said:
… when discretionary power is statutorily conferred on a repository, the power must be exercised reasonably, for the legislature is taken to intend that the discretion be so exercised…. Reasonableness can be determined only by reference to the community standards at the time of the exercise of the discretion and that must be taken to be the legislative intention
- Brennan CJ. In Kruger and Others v. The Commonwealth of Australia [20].
[20] (1997) 190 CLR 1, 36.
One of the principles to be applied in determining what is reasonable when exercising discretionary power which impacts on an individual is that the impact on the individual should be proportionate to the interests which the decision-maker is seeking to protect.[21]
[21] Edelsten v Wilcox and Federal Commissioner of Taxation (1988) 15 ALD 546.
In accordance with section 93A of the Act I must have regard to Guidelines issued by the Australian Information Commissioner under that section. They relevantly provide:
A 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.
It is important that this principle be kept in mind.
Guided by the principles and Guidelines to which I have referred I now turn to consider their application to the facts I have found.
Prior to the making of the declaration by the Commissioner on 9 August 2013 Mr Sweeney made a significant number of requests and applications which I have decided were of such a nature as to unreasonably interfere with the operations of the Authority. In deciding whether to make a declaration I must consider the evidence before me. I am not confined to consider only the evidence before the Commissioner at the time the declaration was made.[23]
[23] Shi v Migration Agents Registration Authority (2008) 235 CLR 286.
Since the declaration was made Mr Sweeney has made a request under the Act using a pseudonym. Although the Act does not prevent the use of a pseudonym, this action by Mr Sweeney was in contravention of the declaration by the Commissioner. He argued that he made the request in this way to prove “that you can use a pseudonym to get around the effects of a vexatious applicant declaration”.[24] It is clear that the use of a pseudonym does not prove that Mr Sweeney could make requests directly to the Commission without being in breach of the declaration. It does not show that a declaration can be “got around” in this way. Mr Sweeney's conduct does demonstrate his disregard for the law and does him no credit.
[24] Transcript 16/06/14 p. 99.
On 13 August 2013 Mr Sweeney made a request to the Commissioner that he be permitted to engage in access action in relation to the Authority. This application was in accordance with the terms and conditions of the Commissioner’s declaration and I do not draw any inference adverse to Mr Sweeney as a consequence.
Taking into account the number and nature of the access actions taken by Mr Sweeney it is reasonable that the exercise by him of the powers given by the Act be restricted. To do this it is appropriate that a declaration be made.
Issue 5: What should be the terms and conditions of the declaration?
It was argued on behalf of the Authority that I should make a declaration which would have the effect of extending the operation of the declaration of the Commissioner until 1 January 2016 on the same terms and conditions set out by the Commissioner.
The grounds on which this proposition was put can be summarised as follows:
·statements made by Mr Sweeney in giving evidence indicate that he will resume engaging in access action in relation to the Authority;
·documents created by Mr Sweeney in the course of these proceedings (such as the letters addressed to the Office of the Legal Services Commissioner and a letter to Mr Sun dated 12 June 2014[25]) indicate an intention to harass and/or intimidate employees of the Authority;
·Mr Sweeney’s access actions in relation to other government agencies indicates an intention to continue to make requests which he acknowledges are vexatious and deliberately provocative;
·Mr Sweeney’s access actions in providing documents to agencies for the purpose of having them published on agency websites indicates an intention to continue to use the Act for purposes for which it was not intended;
·when giving evidence Mr Sweeney stated that he had at all times acted appropriately in relation to the Authority and its employees;
·Mr Sweeney gave evidence that he does not regard himself as being obliged to treat the Authority’s employees with respect and courtesy and without harassment;
·provocative and demeaning statements made by Mr Sweeney concerning the Authority and its employees in documents filed by him in these proceedings;
·Mr Sweeney gave evidence that he did not see a problem in the use of the pseudonym “Pussy Galore” and his signing “Pussy” in a letter intended for the attention of a female employee of the Commission;
·the use in correspondence of the pseudonym “James Bond” with the addition of the words “007 (Licensed to Kill)”;
·the statement by Mr Sweeney that he would use the Act to confirm that correspondence had been received and correctly filed[26];
·unless restrained from doing so by reason of a vexatious applicant declaration Mr Sweeney will continue to engage in access actions as he did before the declaration was made.
[25] Exhibit OP4/4727
[26] Exhibit R1/4727 T11 p.4.
Notwithstanding the difficulties I have summarised, Mr Sweeney’s legitimate concerns to investigate fully the administration of the superannuation fund of which he was a member should not be underestimated nor should his efforts to expose what may be a breach of the terms of the trust which established the fund be unduly hampered.
There is undisputed evidence that since the declaration Mr Sweeney has made at least 12 requests to various Commonwealth Departments and agencies (other than the Authority) for “copies of all correspondence produced by [name of agency] between 2 and 6 December 2013 inclusive in which the last letter in the document before the closing (ie Yours Sincerely) is the letter “t”.”[27] Mr Sweeney described such applications as “deliberately vexatious”[28] and made in an attempt to show that other agencies, when faced with an obviously vexatious application would manage it by means other than by seeking a vexatious applicant declaration.
[27] Exhibit R1/4516 ST 43.
[28] Transcript 17/06/14 p. 137.
Based in part on this evidence, Counsel for the Commissioner and Counsel for the Authority contended that I should include in a declaration a provision restricting Mr Sweeney's right to make applications under the Act to Departments and agencies other than the Authority. On the evidence in this matter, and in the absence of an application by one or more of the other agencies, I do not consider it appropriate to make a declaration in these terms.
In any event it may be that the Tribunal does not have the power to make a declaration in relation to a Department or agency which has not applied for such a declaration. Whilst the Commissioner has the power to make a declaration on his or her own initiative[29], the Tribunal does not. The power given to the Tribunal is a power of review of a decision of the Commissioner.[30] However it is not necessary that I decide this question in this application.
[29] Subsection 89K(2).
[30] Section 89N.
There is also undisputed evidence that Mr Sweeney assisted others to make applications to the Authority for documents he had previously requested from the Authority. He prepared applications for others to lodge and recommended to them that it was in their best interests to do so. Mr Sweeney did this during the time he was the subject of the vexatious applicant declaration.[31] He said that those involved were members of a group of people also claiming to be entitled to pension payments from the fund.
[31] Transcript 17/06/14 p. 128.
It was argued that I should make a declaration preventing those who had applied at the suggestion of Mr Sweeney from making further such requests to the Authority. In my view the Tribunal does not have the power to make declarations affecting the rights of others who are not parties to the proceedings before the Tribunal. They have a right to be heard before any declarations against any of them are made, and then only when the provisions of Part VIII of the Act are satisfied; as I stated earlier in these reasons, the Tribunal does not have the power to make a declaration on its own initiative. This does not mean that the Tribunal should not make a declaration which restricts Mr Sweeney's right to make requests through the agency of another. In this situation it is the right of Mr Sweeney which is being affected, and not that of a third party.
It was put on behalf of the Commissioner and the Authority that I should simply extend the operation of the declaration made by the Commissioner (which continues in force until 9 August 2014) until 1 January 2016. I do not consider that such a severe curtailment of the rights otherwise given to Mr Sweeney by the Act is warranted. Since the making of the declaration Mr Sweeney has made one application in breach of the terms of that declaration. He should not have done so. However in my view it is not reasonable to further restrict his rights to apply under the Act based on this single action which appears to have been based on the misguided belief that it would prove a point for the purposes of these proceedings. Clearly it did not.
The declaration made by the Commissioner ceases to operate in a few days. Had the cessation of that declaration not been imminent I would have set it aside and made a declaration which would have permitted Mr Sweeney to take access actions in relation to the Authority under terms and conditions similar to those imposed in the matter involving the Commission.[32] The right to seek information under the Freedom of Information Act is of such importance that a requirement that the Commissioner’s permission be obtained before an individual is entitled to have any request to an agency considered should only be imposed in the most compelling circumstances.
[32] See [2014] AATA 531.
Both Counsel have expressed the concern of their respective clients that unless restrained for a lengthy period, Mr Sweeney is likely to resume taking access actions contrary to the provisions of the Act. If he does so it is likely that another vexatious applicant declaration will be sought. If this happens and such a declaration is made Mr Sweeney could reasonably expect that it would be in operation for an extended period.
CONCLUSION
In the present circumstances, unless a declaration is made which operates beyond 9 August 2014, a substituted decision will have no practical effect. As I am not satisfied that Mr Sweeney should be further restrained from exercising his rights under the Act after 9 August 2014, the decision of the Australian Information Commissioner made 9 August 2013 will be affirmed.
I certify that the preceding 94 (ninety -four) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance. .........................[sgd]...............................................
Associate
Dated 6 August 2014
Date(s) of hearing 16 - 20 June 2014 Applicant In person Counsel for the Respondent Mr J Davidson Solicitors for the Respondent Legal Services, Office of the Australian Information Commissioner Counsel for the Joined Party
Mr T Wodak
Solicitors for the Joined Party
Legal Group, Australian Prudential Regulation Authority
[22] Guidelines issued by the Australian Information Commissioner under s 93A of the Freedom of Information Act 1982, para 12.7.
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