Phillip Sweeney and Australian Information Commissioner Australian Securities and Investments Commission JOINED PARTY
[2014] AATA 531
[2014] AATA 531
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/4516
Re
Phillip Sweeney
APPLICANT
And
Australian Information Commissioner
RESPONDENT
And
Australian Securities and Investments Commission
JOINED PARTY
DECISION
Tribunal Deputy President J W Constance
Date 4 August 2014 Place Melbourne The decision under review, being the declaration of the Australian Information Commissioner made 9 August 2013, is set aside and a declaration in the following terms is substituted:
(1) In accordance with section 89K of the Freedom of Information Act 1982 (Cth) Phillip Charles Sweeney of 12 Highland Way, Highton, Victoria is declared to be a vexatious applicant.
(2) This declaration will remain in force until 1 January 2015.
(3) Whilst this declaration is in force Mr Sweeney shall only engage in access action, as defined in section 89L of the Freedom of Information Act 1982 (Cth), in relation to the Australian Securities and Investments Commission in accordance with the following terms and conditions:
a. Mr Sweeney shall not engage in more than one access action in any calendar month;
b. an access action shall not be engaged in within 14 days of a previous action;
c. a request shall not seek access to more than three documents;
d. an access action shall not contain material that is not essential to the making of the request or application in accordance with the Act;
e. a request shall not be made in respect of a document or documents previously within the possession or control of Mr Sweeney;
f. a request shall not be made in respect of a document or documents previously provided to the Commission by Mr Sweeney;
g. a request shall not be made in respect of a document or documents which have previously been the subject of an access action directed to the Australian Securities and Investments Commission by or on behalf of Mr Sweeney.
(4) In addition to access action taken in accordance with the terms and conditions set out in the preceding paragraph Mr Sweeney may engage in any access action in relation to the Australian Securities and Investments Commission for which the Information Commissioner has given his permission in writing.
(5) Mr Sweeney shall not make more than two applications for consent to the Information Commissioner in any calendar month.
(6) Mr Sweeney shall not engage in any access action in relation to the Australian Securities and Investments Commission using a pseudonym or pseudonyms.
(7) Mr Sweeney shall not engage in any access action in relation to the Australian Securities and Investments Commission by means of an agent.
(8) The Australian Securities and Investments Commission is not required to consider any access action engaged in by Mr Sweeney which does not comply with the terms and conditions set out in this declaration.
..........................[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 set aside
LEGISLATION
Freedom of Information Act 1982 (Cth) ss 3, 11, 11C, 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
Rogers v The Queen (1994) 181 CLR 251Shi v Migration Agents Registration Authority (2008) 235 CLR 286
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
INTRODUCTION
By agreement between the parties this matter was heard with application number 2013/4727 in which the Australian Prudential Regulation Authority (“the Authority”) 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 given, but as the issues in each matter are the same, parts of these reasons are replicated in the other matter.
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.
Beginning in 2009, Mr Sweeney has made numerous requests of the Other Party, the Australian Securities and Investments Commission (“the Commission”), for 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 Commission in relation to the administration of the trust.
Between 26 December 2010 and 9 August 2013 Mr Sweeney made at least 143 requests to the Commission in exercise of rights given to him by the Act.
On 9 August 2013, following an application by the Commission, 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 Australia 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.[1]
[1] Exhibit R1, T1 p.3.
Mr Sweeney seeks a review of the Commissioner’s decision. For the reasons which follow the decision will be set aside and a decision will be substituted.
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 Commission 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 29 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 provided for 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 with the company, was provided. It was not until about November 2009 that he received advice from the Commission that it had been in contact with the trustee.
By reason of the delay in the response from the Commission and the fact that 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 again, advising that he still 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 at that time the terms of the trust had been changed to provide for the payment of pensions to former employees and their widows.
Late in 2009 the Commission informed Mr Sweeney that it had assessed his concerns and did not intend to take any further action in relation to the administration of the trust.
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 trustee to provide them. In his words “I was trying to prod [the Commission] into taking some action to actually get me these deeds.”[2] 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.
[2] 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.
In addition to seeking the documents to which I have referred Mr Sweeney also applied under the Act to the Commission to produce documents, such as copy deeds, which he had provided to the Commission. He did this on approximately 32 occasions. Mr Sweeney’s explanation was that he wished to ensure that there was evidence that the Commission had received the documents and that they had been correctly recorded and filed upon receipt.
Mr Sweeney also made applications to the Commission to produce documents relating to other investigations relating to alleged non-compliance with statutory obligations. He did this to compare action taken in respect of the complaint he had made with action taken by the Commission in relation to other complaints.
Mr Sweeney was concerned also that, at the time he was asking for action to be taken against the trustee, the Chairman of the Commission had not disclosed to him matters which Mr Sweeney regarded as giving rise to a conflict of interest for the Chairman. He used the Act to seek documents in relation to the perceived conflict of interest.
Other applications to the Commission were made by Mr Sweeney seeking documents relating to communications between the Commission and the Authority and the Commission and several Government Ministers and the Commonwealth Ombudsman, concerning the administration of the trust.
On occasions the Commission 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. Mr Sweeney estimates that he has paid approximately $1000.00 in fees to the Commission.
On occasions Mr Sweeney was asked by the Commission for an extension of time in which to comply with his request; on these occasions he agreed. On other occasions the Commission requested, and was granted, an extension of time by the Commissioner.
Evidence of Mr Povey, Acting Senior Manager, Australian Securities and Investments Commission
I am satisfied that Mr Povey 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 the following paragraphs 31-48 inclusive.
On 24 December 2013 (i.e. during the time the declaration was in operation) the Commission received a request under the Act from Mr Sweeney using a pseudonym. The request was addressed to the “Freedom of Information Officer – ASIC” and was signed “007”. Under the signature appeared the words “The name is Bond – James Bond – 007 (Licensed to Kill)”.[3] The document requested by Mr Sweeney was one which he had provided to the Commission.
[3] Exhibit OP5/4516 annexure MSP-50.
On 2 January 2014 the Commission received a request from Mr Sweeney, again using the pseudonym “James Bond”. The request was addressed to the “Freedom of Information Officer – ASIC” and was signed in the same manner as the previous request.[4]The document requested by Mr Sweeney was a copy of a letter he had written to the Commissioner of the Commission.
[4] Exhibit OP5/4516 annexure MSP-57.
On 6 January 2014 the Commission received a request from Mr Sweeney for a review of the Commission’s refusal to consider his request received on 24 December 2013. The request was made under the pseudonym “James Bond” and was signed in the same manner as the previous correspondence.[5]
[5] Exhibit OP5/4516 annexure MSP-62.
On 7 January 2014 the Commission received a request from Mr Sweeney using the pseudonym “Auric Goldfinger”.[6] The letter was marked to the attention of Ms Crowe, an employee of the Commission with whom Mr Sweeney had had previous dealings. It included the salutation “Dear Crowe”. The four documents requested by Mr Sweeney had been previously provided to him by the Commission.
[6] Exhibit OP5/4516 annexure MSP – 63.
On 7 January 2014 the Commission received a request from Mr Sweeney using the pseudonym “Pussy Galore”.[7] The letter was marked to the attention of Ms Crowe. It was signed “Pussy”. It included the salutation “Dear Crowe”. The document requested had been provided to the Commission by Mr Sweeney.
[7] Exhibit OP5/4516 annexure MSP – 64.
On 8 January 2014 the Commission received a request from Mr Sweeney using the pseudonym “Odd Job”.[8] The letter was marked to the attention of Ms Crowe and included the salutation “Dear Crowe”. Again, the document requested had been provided to the Commission by Mr Sweeney.
[8] Exhibit OP5/4516 annexure MSP – 65.
On 3 February 2014 the Commission received a letter from Mr Sweeney addressed to Ms Crowe. It contained the salutation “Dear Crowe” and was signed with the pseudonym “Odd Job”.[9] The letter referred to a failure to acknowledge receipt of the request received on 8 January 2014.
[9] Exhibit OP5/4516 annexure MSP-72.
On 18 February 2014 the Commission received a letter from Mr Sweeney addressed to Ms Crowe. It contained the salutation “Dear Crowe” and was signed with the pseudonym “Pussy”.[10] The letter referred to a failure to acknowledge receipt of the request received on 7 January 2014.[11]
[10] Exhibit OP5/4516 annexure MSP-76.
[11] Exhibit OP5/4516 annexure MSP-64.
On 4 April 2014 the Commission received from Mr Sweeney a request under the Act. Mr Sweeney used the pseudonym “Auric Goldfinger”.[12]
[12] Exhibit OP6/4516 annexure MSP-9.
When using the pseudonyms Mr Sweeney did not acknowledge that the requests were made by him. However when he gave evidence he agreed that he had made the requests. He agreed also that all the requests made since 9 August 2013 were made without the permission of the Commissioner.
Since mid-July 2012 there have been approximately 570 members of the staff of the Commission authorised to make decisions under the Act. Some of these members usually undertake internal reviews only; approximately 320 members deal with initial access actions under the Act. All these staff members have other duties in addition to acting in relation to actions under the Act.
Between 1 November 2010 and 31 December 2010 the Commission received 65 access actions in all of its offices in Australia; of these Mr Sweeney was engaged in one. From 1 January 2011 to 31 December 2013 the Commission received 819 access actions in all of its offices; Mr Sweeney was engaged in 150 of those actions.
The Commission does not have a record of the time spent in relation to each request made by Mr Sweeney. In respect of the majority of applications the staff member involved made an estimate that less than five hours would be required to process the request and therefore no charge would be applicable. On this basis the time actually spent was not recorded.
Exhibit OP 10/4516 is a detailed list of the requests under the Act made by Mr Sweeney in the period 25 December 2010 to 2 April 2014. The total requests recorded are 160.
There are forty-five requests where the time recorded is five hours or more. The average time per request spent by a staff member on each of these requests was 6.74 hours.
In broad terms the process undertaken in respect of each request for the production of documents made by Mr Sweeney was as follows:
…. there would be assessing what documents are requested, whether or not that description of the documents in the request is clear enough to assist us in finding those documents, if not, writing back to the applicant and requesting clarification then searching for those documents, retrieving those documents, assessing those documents to see if there’s third parties that should be consulted in regards to release. If there are third parties that need to be consulted, writing to those third parties, writing to the applicant telling them that we’re writing to the third parties, getting the information – any submission back from the third parties, assessing their views, then on a document-by-document basis assessing whether exemptions apply. If it is a conditional exemption then you must also consider whether the public interest is in the disclosure of the document, so that’s the two-limbed test on those particular documents. Setting out the decision. If fees are going to be levied, doing a calculation on whether or not fees are going to be levied, writing to the party saying either pay the fees or a deposit before we go any further along the process. Once that process has been finalised, or if it hasn’t been engaged in, then writing to the applicant with a decision and writing to third parties with the decision. That might not be the end of it. If the decision is to release documents above an objection by a third party then review rights must be notified to the third party and the documents aren’t actually released at that point. A 30-day period must elapse before we can actually hand over the documents, so there is a lot of work involved.[13]
In addition, documents released had to be copied and forwarded to Mr Sweeney and, if necessary, details recorded on the disclosure log.
[13] Transcript of evidence of Mr Povey 18/06/14 at p.222.
The members of staff who processed Mr Sweeney's requests have varied, but usually between six and ten staff have been involved. The number and frequency of Mr Sweeney’s requests have diverted staff from other duties. Staff members have expressed extreme frustration and dissatisfaction that they have been prevented from performing other duties.
When the Commission received the correspondence under the pseudonym “James Bond – 007 (Licensed to Kill)” it was referred to the risk management team as it was considered to be a possible threat.
CONSIDERATION
Issue 1: Has Mr Sweeney engaged in access actions?
Both the Commissioner and the Commission 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) sets out when a person “engages in an access action”. It includes making “a request”, which is defined to mean an application for access to documents.[14]
[14] Section 15.
It is not in dispute that within the specified period Mr Sweeney has made requests for access to documents to the Commission. On the basis of the evidence of Mr Sweeney and Mr Povey 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 Povey, which is not disputed by Mr Sweeney, I have found that Mr Sweeney has made at least 160 applications, in respect of each of which he engaged in an access action. These actions occurred over a period of just over three years and six months. These applications were commonly made at intervals of less than two weeks (and sometimes two-three days) and at the rate of several each calendar month.
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 Commission and unreasonable interference with its operations. Neither the Commissioner nor the Commission relied on the wider meaning of subsection 89L(4) and it is not necessary to consider the wider meaning for the purposes of this review.
Did Mr Sweeney’s conduct harass or intimidate an individual or an employee of the Commission?
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 was not intended that an applicant could be declared “vexatious” simply because an individual or an employee felt harassed 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 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 is not necessary that it 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 properly characterised as an “abuse of the process for an access action.” If Parliament intended otherwise it would have used the word “is” instead of the word “involves” in subsection 89L(1).
On the facts I have found I am satisfied that Mr Sweeney’s repeated engagement in making applications to the Commission involved harassment of at least one employee of the Commission, namely Ms Crowe. The conduct which, when viewed as a whole and on an objective basis, I find was harassing is:
·the repeated addressing of Ms Crowe in correspondence as “Crowe”;
·the signing of correspondence addressed to Ms Crowe on more than one occasion with the pseudonym “Pussy”, an accepted colloquialism for the female genitalia.[15]
[15] Macquarie Dictionary.
Mr Sweeney gave as an explanation that his addressing Ms Crowe as “Crowe” was a result of his using a template letter which may have been inadvertently addressed this way. I do not accept his evidence in this regard. His demeanour and manner of giving the evidence caused me to reach this conclusion.
On the evidence before me I am not satisfied that an individual or an employee of the Commission was intimidated.
Did Mr Sweeney’s conduct unreasonably interfere with the operations of the Commission?
I am satisfied that Mr Sweeney's repeated engagement in access actions over the period under consideration involved conduct “unreasonably interfering with the operations of” the Commission, in accordance with the definition in subsection 84L(4).
In reaching this conclusion I have viewed the making of the applications by Mr Sweeney as a whole, but there are several specific factors which I have taken into account.
First I have had regard to the fact that over the period of 136 weeks prior to his being declared a vexatious applicant, Mr Sweeney made at least 143 applications to the Commission.[16] This is an average of just over one application per week. Whilst Mr Sweeney correctly argued that the Act does not limit the number of applications an individual may make, the number of applications made by him is significant and continued over a prolonged period. During 2011, 2012 and 2013 Mr Sweeney alone was engaged in 18 per cent of all access actions instituted in the Commission in Australia.
[16] Exhibit OP10/4516.
Secondly, I have considered the time which the applications have taken to process. In the case of 45 of the applications made since 26 December 2010, the average time spent by Commission staff in processing the requests was 6.74 hours. There is no record of the time spent on the remaining applications, most of which would have taken less than five hours per application to process. Of course this would substantially reduce the average time spent per application (when all applications were taken into account). Nevertheless the time devoted to Mr Sweeney's applications is significant.
There is some evidence as to the time spent by particular employees of the Commission in the application made by the Commission to the Commissioner.[17] However these officers did not give evidence and were not subject to cross-examination. As a result I have been unable to determine how much of their time was spent on matters within the definition of “access action” and how much was spent on other matters raised by Mr Sweeney.
[17] Exhibit R1, T3.
There is considerable evidence before me as to the time taken by employees of the Commission in relation to complaints by Mr Sweeney and to other correspondence from him relating to other matters such as the conduct of these proceedings before the Tribunal. I have disregarded this evidence. Subsection 89L(1) specifies that for a declaration to be made, certain conduct must be proven. That conduct must involve engagement in “access actions”. The conduct which amounts to an “access action” is set out in subsection 89L(2). It does not include complaints or general correspondence.
Thirdly, the nature of the access actions taken by Mr Sweeney is significant. An examination of the data contained in exhibit OP 10/4516 shows that of the 160 requests under the Act made by Mr Sweeney since 26 December 2010, 43 were requests for access to correspondence previously sent by Mr Sweeney to the Commission or by the Commission to Mr Sweeney. A further 42 of the requests repeated, at least in part, a request previously made by Mr Sweeney. At times such requests were made only a few days apart.
Mr Sweeney said that at times when he made a second request, he may have forgotten that he had already requested documents or that he had lost documents previously supplied. Having listened to Mr Sweeney give evidence and observed the detail of his presentation of documents to the Tribunal, I do not accept this explanation. I have formed the view that it is unlikely that Mr Sweeney inadvertently made multiple requests for this reason.
Fourthly, I am satisfied that the several occasions on which Mr Sweeney used the pseudonym “James Bond”, with the addition of the words “Licensed to Kill” would be likely to raise security concerns within the Commission. On the basis of the evidence of Mr Povey I am satisfied that these actions by Mr Sweeney did cause the correspondence to be referred to security personnel, be it ultimately unnecessarily.
I have found, accepting the evidence of Mr Povey, that the volume, frequency and nature of Mr Sweeney's actions caused distress to some staff at the Commission. This would itself interfere with the operations of the Commission.
I am satisfied that all of these factors combined to interfere with the operation of the Commission.
The next point to consider whether the interfering with the operation of the Commission was done “unreasonably.”
Mr Sweeney argued that the Commission failed to use the powers given to it by the Act and the resources available to it to properly manage his applications and that this was the reason for the interference in the Commission’s operations. He argued therefore that such interference as he 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 Commission 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 from the Commissioner if his consent was not forthcoming;
·the power to determine that a fee was payable in respect of particular 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 Commission 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 Commission 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 additional fees may also have reduced the work required. However, even taking this into account I have reached the conclusion that the volume, frequency and nature of the requests were such that Mr Sweeney unreasonably interfered with the operations of the Commission and was an abuse of the process for an access action. I have taken particular account of the repetitive requests and those requesting documents which were already in Mr Sweeney’s possession.
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 subsection 89L(b). No doubt there will be occasions when it will be necessary to consider the wider meaning of the words “abuse of process of an access action”. It is not necessary 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 that impact 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 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.[22]
It is important that this principle be kept in mind.
[22] Guidelines issued by the Australian Information Commissioner under s 93A of the Freedom of Information Act 1982, para 12.7.
Prior to the making of the declaration by the Commissioner on 9 August 2013 Mr Sweeney made a significant number of requests for documents previously provided to him by the Commission, or previously provided by him to the Commission. In addition he repeated, at times at very short intervals, requests he had already made. The repetition of this conduct, in the circumstances of this case, required the making of a declaration. However, I must consider all of the evidence before me and make a decision based on that evidence rather than the evidence available to the Commissioner at the time the reviewable decision was made, being 9 August 2013.[23]
[23] Shi v Migration Agents Registration Authority (2008) 235 CLR 286.
Since the declaration was made Mr Sweeney has made nine requests under the Act using pseudonyms. Although the Act does not prevent the use of a pseudonym, each of these actions by Mr Sweeney was clearly a contravention of the declaration by the Commissioner. He argued that he made requests 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. In addition some of these requests were harassing and couched in offensive terms.
[24] Transcript 16/06/14 p.99.
In deciding whether to exercise the discretion to make a declaration it is appropriate to consider the objects of the Act and whether the actions of Mr Sweeney indicate that his exercise of the rights it provides has gone beyond achieving those objects.
Mr Sweeney argued that his reasons for seeking access to documents are irrelevant in light of section 11 of the Act which provides:
Right of access
(1) Subject to this Act, every person has a legally enforceable right to obtain access in accordance with this Act to:
(a) a document of an agency, other than an exempt document; or
(b) an official document of a Minister, other than an exempt document.
(2) Subject to this Act, a person's right of access is not affected by:
(a) any reasons the person gives for seeking access; or
(b) the agency's or Minister's belief as to what are his or her reasons for seeking access.
However, the right to access is expressed to be subject to the Act. Read in the context of the Act it refers to an applicant’s making of a request for access to a document. Section 11 is subject to the provisions of Division 1 of Part VIII which includes sections 89K to 89N. It does not prevent consideration of the purpose of Mr Sweeney's requests in deciding whether or not a declaration should be made.
Section 3 of the Act sets out its objects:
(1) The objects of this Act are to give the Australian community access to information held by the Government of the Commonwealth or the Government of Norfolk Island, by:
(a) requiring agencies to publish the information; and
(b) providing for a right of access to documents.
(2) The Parliament intends, by these objects, to promote Australia's representative democracy by contributing towards the following:
(a) increasing public participation in Government processes, with a view to promoting better-informed decision-making;
(b) increasing scrutiny, discussion, comment and review of the Government's activities.
(3) The Parliament also intends, by these objects, to increase recognition that information held by the Government is to be managed for public purposes, and is a national resource.
(4) The Parliament also intends that functions and powers given by this Act are to be performed and exercised, as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost.
The objects of the Act include requiring the Government of the Commonwealth to publish information held by it as well as making documents containing that information available to individual applicants. Section 11C provides for publication of the information on a website so that it is generally available. In this way members of the public, in addition to the original applicant, can have access to the information the subject of a request. Disclosure in this way is subject to restrictions, such as the disclosure of personal information when it would be unreasonable to publish such information.
In seeking to ascertain the documents held by the Commission in relation to the superannuation fund and, subsequently, in seeking to obtain information as to how the Commission had dealt with his requests, Mr Sweeney was making very effective use of the provisions of the Act.
However, in many cases documents sought by Mr Sweeney under the Act were in the possession of the Commission because he had provided them to it.[25] Mr Sweeney gave various reasons for such requests:
·to obtain evidence that the document had been received and properly filed by the Commission and could be retrieved on request;
·to avoid sending a document by registered post to the Commission which was more expensive than an application under the Act since Parliament repealed the requirement for a $30.00 application fee[26];
·to have a document in his possession published on a public website;
·to “prod” the Commission into taking action against the trustee of the superannuation fund;
·to prove that the vexatious applicant declaration could be circumvented.
[25] See documents listed in exhibit OP 10/4516.
[26] Transcript 18/06/14 p-302.
The Act promotes the gaining of access to government information, both by the individual applicant and the public at large. In his Guidelines the Commissioner referred to the obligation to maintain a disclosure log as follows:
14.2 The requirement to publish a disclosure log complements the establishment of the IPS (see Part 13 of these Guidelines). Together, these reforms require agencies and, for the disclosure log, ministers, to publish a greater range of government information.
14.3 The disclosure log facilitates publication to the world at large of information released under FOI to individual applicants. This reinforces the objective of the FOI Act to promote a pro-disclosure culture across government and to increase recognition that information held by government is a national resource (s 3(3)).[27]
[27] Guidelines issued by the Australian Information Commissioner under s 93A of the Freedom of Information Act 1982, paras 14.2 and 14.3.
Reasoning in the High Court in Rogers v The Queen[28] assists in deciding whether to make a declaration. Mc Hugh J. noted in his dissenting judgement that abuse of procedure usually falls into three categories, one of which is the invoking of court procedures for an illegitimate purpose.[29]
[28] (1994) 181 CLR 251.
[29] (1994) 181 CLR 251, 286.
In using the Act as a means to have documents already in his possession recorded on the Commission’s website so as to publicize them is beyond the objects of the Act and is not a legitimate exercise of the powers given by it to an individual. Whilst some of Mr Sweeney's objectives may be legitimate, the use of the Act in the manner outlined above, particularly on a repetitive basis, is not in accordance with the objects of the Act. This is a further reason to make a declaration.
Issue 5: What should be the terms and conditions of the declaration?
In summary, the problems which have arisen with Mr Sweeney's engagement in access actions to the Commission can be summarised as follows:
·the volume and frequency of requests;
·his requests for documents already in his possession;
·his requests for documents already requested;
·his use of the procedures in the Act to harass an employee of the Commission;
·his use of the procedures in the Act in a manner which unreasonably interfered with the operations of the Commission;
·his use of the procedures in the Act for purposes beyond the objects of the Act;
·his disregard for the declaration of the Commissioner.
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 12 requests to various Commonwealth Departments and agencies (other than the Commission) 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”.”[30] Mr Sweeney described such applications as “deliberately vexatious”[31] 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.
[30] Exhibit R1/4516 ST 43.
[31] Transcript 17/06/14 p-137.
Based in part on this evidence, Counsel for the Commissioner and Counsel for the Commission 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 Commission. On the evidence in this matter 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[32], the Tribunal does not. The power given to the Tribunal is a power of review of a decision of the Commissioner.[33] However it is not necessary that I decide this question in this application.
[32] Subsection 89K(2).
[33] Section 89N.
There is also undisputed evidence that Mr Sweeney assisted others to make applications to the Commission for documents he had previously requested from the Commission. 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.[34] He said that those involved were members of a group of people also claiming to be entitled to pension payments from the fund.
[34] Transcript 17/06/14 p-128.
It was suggested that it would be appropriate to make a declaration preventing those who had applied at the suggestion of Mr Sweeney from making further such requests to the Commission. 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. 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 Commission 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. On the evidence before me Mr Sweeney should be entitled to have some requests under the Act considered by the Commission without needing to obtain the permission of the Commissioner or of any other person. In my view the terms of the declaration under review were unduly harsh in the circumstances of this matter. 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.
I consider that a reasonable person would be of the view that Mr Sweeney’s conduct since the making of the declaration has been such that a declaration should be made which will operate beyond 9 August 2014. I propose to make such a declaration. This is not intended to be a form of punishment for Mr Sweeney’s disregard for the terms of the declaration. Rather it is intended to protect the Commission from a repetition of conduct of Mr Sweeney which has occurred both before and after the declaration was made. Unless such a restriction is in place it is reasonable to assume that this conduct may resume.
It is not reasonable in all the circumstances to make a declaration which will continue to operate until 1 January 2016. To do so would be to restrict Mr Sweeney’s rights to apply under the Act for a total of almost 2 ½ years. The impact of such a restriction would be disproportionate to the need to protect the interests of the Commission. I consider that it is reasonable to restrict Mr Sweeney’s right to use the provisions of the Act until 1 January 2015.
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 application for a vexatious applicant declaration will be made. If this happens and such a declaration is made Mr Sweeney could reasonably expect that it would be in operation for an extended period.
DECISION
Taking all the evidence into account and endeavouring to balance the competing interests concerned I have decided that the decision under review should be set aside and a declaration in the following terms be substituted:
(1) In accordance with section 89K of the Freedom of Information Act 1982 (Cth) Phillip Charles Sweeney of 12 Highland Way, Highton, Victoria is declared to be a vexatious applicant.
(2)This declaration will remain in force until 1 January 2015.
(3)Whilst this declaration is in force Mr Sweeney shall only engage in access action, as defined in section 89L of the Freedom of Information Act 1982 (Cth), in relation to the Australian Securities and Investments Commission in accordance with the following terms and conditions:
a. Mr Sweeney shall not engage in more than one access action in any calendar month;
b. an access action shall not be engaged in within 14 days of a previous action;
c. a request shall not seek access to more than three documents;
d. an access action shall not contain material that is not essential to the making of the request or application in accordance with the Act;
e. a request shall not be made in respect of a document or documents previously within the possession or control of Mr Sweeney;
f. a request shall not be made in respect of a document or documents previously provided to the Commission by Mr Sweeney;
g. a request shall not be made in respect of a document or documents which have previously been the subject of an access action directed to the Australian Securities and Investments Commission by or on behalf of Mr Sweeney.
(4)In addition to access action taken in accordance with the terms and conditions set out in the preceding paragraph Mr Sweeney may engage in any access action in relation to the Australian Securities and Investments Commission for which the Information Commissioner has given his permission in writing.
(5)Mr Sweeney shall not make more than two applications for consent to the Information Commissioner in any calendar month.
(6)Mr Sweeney shall not engage in any access action in relation to the Australian Securities and Investments Commission using a pseudonym or pseudonyms.
(7)Mr Sweeney shall not engage in any access action in relation to the Australian Securities and Investments Commission by means of an agent.
(8)The Australian Securities and Investments Commission is not required to consider any access action engaged in by Mr Sweeney which does not comply with the terms and conditions set out in this declaration.
I certify that the preceding 109 (one hundred and nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance. ...........................[sgd].............................................
Associate
Dated 4 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 R Knowles
Solicitors for the Joined Party
Chief Legal Office, Australian Securities and Investments Commission
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