Recent Cases: Commonwealth
'BAZ' and Australian Trade and Investment Commission (Freedom of Information) [2026] AICmr 54 (10 July 2026)
Facts
‘BAZ’ (“applicant”) made a 5 part request to the Australian Trade and Investment Commission (“Commission”) for documents relating to the Export Market Development Grants Program (“Program”).
The Commission notified the applicant that they were liable to pay a charge of $560.00 for processing the request. The applicant responded and excluded certain types of material from the request, the Commission did not waive or reduce the charge. The applicant then applied to the Office of the Australian Information Commissioner (“Commissioner”) for a review of the decision.
Held
The Commissioner set aside the Commission’s decision, finding that the applicant was not liable to pay any charge in relation to their request for access to documents.
Reasoning
Charges – s 29
The Commission provided submissions outlining that the time that would be needed for processing the request would include 36 hours for searches and retrieval and 1 hour for decision making time. Of this time, 30 hours were calculated for creating spreadsheets in response to 2 parts of the request due to no discreet documents existing for the request, documents would need to be made under s 17 of the FOI request. The Commission also claimed that the documents contained commercially sensitive information about the Commission and third party organisations.
The applicant submitted that the Commission did not consult before confirming the charge and understood that there were only 3 existing documents that were responsive to the request, so there was no need for the Commission’s proposed work. Furthermore, the applicant submitted that the amount claimed was excessive due to parts of the request that would not have responsive information and the limited number of guarantees sought by the applicant. Finally, the applicant claimed that it did not appear the Commission had consulted with the relevant former IT manager in charge of the information sought and claimed financial hardship.
The Commissioner did not make a conclusion on the matter of financial hardship due to the lack of information to show that payment of the charge, or part of it, would have caused the applicant financial hardship in light of the s93A Guidelines comments on financial hardship. The Commissioner did not consider it any further as the Commissioner was satisfied that giving the applicant access to the documents would be in the general public interest.
Public interest – s 29(5)(b)
The Commissioner was not satisfied that the documents contained commercially sensitive information and reasoned that giving the applicant access to the documents would be within the general public interest. Because s 29(5)(b) does not consider the balancing of public interest factors, the Commissioner only considered the factors favouring disclosure. Thes factors included that giving access to the material would facilitate discussion and scrutiny of government processes and expenditure. The Commission did not meet its onus to establish why giving access to the material would not be in the public interest.
The Commissioner reasoned that in addition to the disclosure of the information being in the public interest, the costs of calculating and collecting the charge might exceed the cost of processing the request. The Commissioner reasoned that this would militate in favour of the waiver of the charge, particularly because the Commission’s submissions did not explain why the work would be required to create documents under s 17 in relation to Part 1 of the request.
The Commission ultimately found that the applicant was not liable to pay any charge in respect of the documents.
Australian Human Rights Commission and 'BAY' (Freedom of Information) [2026] AICmr 53 (8 July 2026)
Facts
The Australian Human Rights Commission (“applicant”) applied to the Office of the Australian Information Commissioner (“Commissioner”) for a vexatious applicant declaration about ‘BAY’ (“respondent”). The applicant advise that in the 12 months before making its application for a vexatious applicant declaration, the respondent had engaged in 171 access actions consisting of 70 FOI requests and 1 internal review application in their own name and a further 100 requests lodge anonymously or using a pseudonym.
Held
Under s 89K(1) of the Freedom of Information Act 1982 (the FOI Act), the Commissioner declared the respondent to be a vexatious applicant on the basis that their repeated access actions involve an abuse of process because they have unreasonably interfered with the operations of the applicant. The declaration confirmed that the applicant is not required for a period of 2 years commencing from the date of the declaration, any further requests that the applicant reasonably believes have been made by the respondent or on their behalf, including using a pseudonym or agent, or further process any request that has been made, or conduct internal reviews. The declaration included a prohibition on review applications to the OAIC for the same 2 years.
Reasoning
Repeated engagement in access actions – 89L(1)(a)
The applicant argued that the respondent had repeatedly engaged in access actions, amounting to an abuse of process by unreasonably interfering with the agency’s operations. It relied on evidence that the respondent made 71 access actions in their own name and allegedly 100 additional requests using anonymous or pseudonym identities, many of which were repetitive and reflected ongoing grievances against the respondent and its staff. The respondent did not directly dispute the number of requests attributed to them. Referring to the FOI Guidelines, the Commissioner noted there is not a fixed number of requests needed to establish a pattern of repeated access actions. The Commissioner found that 71 access actions within less than a year, even allowing for 18 withdrawals, clearly constituted repeated engagement in access actions. The repetitive nature of the requests further supporting this finding. Accordingly, the Commissioner was satisfied that the respondent had repeatedly engaged in access actions for the purposes of s 89L(1)(a).
Abuse of process
The Commissioner found that the respondent’s repeated FOI access actions amounted to an abuse of process because they unreasonably interfered with the applicant’s operations. The requests were often repetitive and aimed at re-agitating grievances against the applicant, staff members and statutory office holders. Many requests contained unsubstantiated allegations, including accusations of racism, white supremacy and misuse of public funds directed at the applicant and its staff. The Commissioner considered the requests to be an excessive and disproportionate continuation of the respondent’s dissatisfaction with the applicant. The respondent’s requests made up a disproportionate share of the applicant’s FOI workload, placing a heavy burden on its small legal team. The Commission attempted to manage the requests through consultation, extensions of time and practical refusal processes, but the respondent continued making numerous requests. The Commissioner concluded that the respondent had repeatedly engaged in access actions that involved an abuse of process.
Terms of Declaration – s 89M(1)
The Commissioner made a vexatious applicant declaration for two years. During that period the applicant is not required to process any new FOI requests or internal review applications that it reasonably believes are made by or on behalf of the respondent, including requests made under a pseudonym or through an agent. The applicant is not required to continue processing any outstanding FOI requests made by the respondent. The applicant will not consider any FOI requests or review applications made by or on behalf of the respondent concerning the applicant. The respondent was given an opportunity to comment on the proposed terms but did not respond., The Commissioner found that these restrictions were reasonable and justified because they addressed the respondent’s unreasonable interference with the applicant’s operations while still maintaining an appropriate balance between the respondent’s FOI rights and the efficient use of government resources.