Vexatious Applicant Declarations – Guidance for agencies from the recent case of Australian Human Rights Commission and 'BAY' (Freedom of information)

Australian Human Rights Commission and 'BAY' (Freedom of information) [2026] AICmr 53 

In this recent decision, Freedom of Information Commissioner Alice Linacre (Commissioner) declared the respondent, 'BAY', a vexatious applicant under s 89K(1) of the Freedom of Information Act 1982 (Cth) (FOI Act), on the basis that the respondent's repeated access actions involved an abuse of process by unreasonably interfering with the operations of the Australian Human Rights Commission (the AHRC). The decision is a useful illustration of the evidence an agency must gather to discharge its onus and the weight the Commissioner will give to an applicant's repeated failure to moderate their conduct and the Commissioner’s expectations of model litigants.

Vexatious applicant declarations - the framework

The Commissioner may declare a person a vexatious applicant under s 89K of the FOI Act, either on the Commissioner's own initiative or on the application of an agency or minister. A declaration may only be made where the Commissioner is satisfied of any of the following (s 89L(1)):

1. that the person has repeatedly engaged in access actions and the repeated engagement involves an abuse of process
2. that a particular access action involves, or would involve, an abuse of process, or
3. that a particular access action would be manifestly unreasonable.

An 'access action' is defined at s 89L(2) as including:

• making an FOI request (s 15)
• applying for amendment or annotation of a record of personal information (s 48)
• applying for internal review (s 54B), and
• applying for Information Commissioner (IC) review (s 54N).

An 'abuse of process' includes, but is not limited to (s 89L(4)):

• harassing or intimidating an individual or agency staff
• unreasonably interfering with an agency's operations
• seeking to use the FOI Act to circumvent access restrictions imposed by a court.

Declarations are not made lightly. Where an agency or minister applies, they bear the onus of establishing that the declaration should be made (s 89K(3)), and the person concerned must be given the opportunity to make written or oral submissions in reply (s 89L(3)). The FOI Guidelines at paragraph 12.7 emphasise that a declaration has the practical effect of preventing a person from exercising an important legal right to information, and that an applying agency must establish a clear and convincing need to obstruct the person’s ability to exercise that right.

The Commissioner reiterated in this decision that the bar remains high, noting that a declaration attaches to an individual and any further action taken by them, not merely a singular application. The Commissioner also referenced Parliament’s intentions outlined in the Explanatory Memorandum to the Freedom of Information Amendment (Reform) Bill 2009:

’… the intent was not to use this power when an applicant was perceived of as a ”nuisance”, more is needed.’

Background

The respondent had an extensive history of engagement with the AHRC, including lodging racial discrimination complaints under legislation administered by the AHRC. In the 12 months before the AHRC applied for a declaration, the respondent engaged in 171 access actions, comprising:

• 70 FOI requests and one internal review application made in their own name between 26 October 2024 and 10 September 2025, and
• a further 100 requests were lodged anonymously or under a pseudonym between 5 September 2025 and 28 October 2025, which the AHRC attributed to the respondent based on their timing and the similarity of their style and content.

The AHRC made several attempts at engaging with the applicant to manage the volume and impact of the requests before applying for a declaration, including:

• consulting with the respondent under s 15(3)
• seeking extensions of time under s 15AA
• using the request consultation process where practical refusal grounds arose, and
• repeatedly engaging with the respondent by telephone and in writing about limiting their requests.

On 1 July 2025, the respondent proposed limiting their FOI requests to one per quarter, an arrangement accepted by the AHRC on 29 August 2025. Despite this agreement, the respondent subsequently submitted 12 FOI requests in their own name over a three-day period. The AHRC applied to the OAIC for a vexatious applicant declaration on 31 October 2025.

Decision

The Commissioner declared the respondent a vexatious applicant under s 89K(1) being satisfied that the respondent had repeatedly engaged in access actions and that the repeated engagement involved an abuse of process by unreasonably interfering with the AHRC's operations (s 89L(1)(a)).

The declaration will operate for a period of two years. During that time, the AHRC is not required to consider any FOI requests or internal review applications that it reasonably believes have been made by, or on behalf of, the respondent, including under a pseudonym or through an agent, nor is it required to continue processing any outstanding requests. The OAIC will also decline to consider any IC review applications or other requests relating to the AHRC that are made by, or on behalf of, the respondent.

Key reasoning

Repeated engagement in access actions

The Commissioner noted that the FOI Guidelines do not provide a fixed number of access actions that will trigger a vexatious finding. Where the alleged abuse is harassment or repetition of a decided request, a small number may suffice, whereas a claim of unreasonable interference may call for a higher number. In this case, the Commissioner found 71 access actions in under a year (excluding the anonymous and pseudonymous requests and even allowing for 18 withdrawals) to constitute repeated engagement.

Immoderate prolongation of a separate grievance

The Commissioner accepted that the access actions, rather than genuine requests for information, were aimed at re-agitating grievances with AHRC staff members and statutory office holders. A significant number of the requests related to the Race Discrimination Commissioner and the Race Discrimination Team. The requests and associated correspondence included inflammatory and unsubstantiated allegations against identified staff members, including allegations of racism and white supremacist bias, and characterised office holders as ‘house slaves’. The Commissioner found this language could not reasonably be characterised as legitimate criticism of the AHRC's performance and instead demonstrated a personal grievance directed at individual public officers.

Drawing on Australian Securities and Investments Commission and Sweeney [2013] AICmr 62 and Morris and Australian Information Commissioner [2017] AATA 363, the Commissioner reiterated that the FOI Act is not to become a platform for the immoderate prolongation of a personal grievance, and gave this factor significant weight.

Volume, frequency and impact on a small agency

The AHRC's FOI requests increased by 250% in 2024-25, with almost the entirety of the increase attributable to the singular respondent. The respondent's 167 access actions over one year and two days exceeded all requests received by the AHRC from all sources over the previous four financial years combined.

The Commissioner accepted that the AHRC is a small agency (227 employees) whose FOI processing sits within a legal team of eight lawyers and two paralegals who also provide all the AHRC’s in-house legal services. Notably, the Commissioner rejected the respondent's submission that the AHRC improperly argued they had a lack of resources given it is a well-funded agency. Instead, the Commissioner found that the AHRC's resourcing of FOI decision-making was reasonable and proportionate to the size of the agency, however, she did note that this consideration would have been different had the AHRC’s FOI team been under-resourced relative to the agency’s size. The Commissioner noted favourably that despite the surge in requests, 97% of the AHRC’s decisions were made within the statutory timeframe.

Agency conduct and the respondent's failure to cooperate

The Commissioner was satisfied that AHRC had exhausted the other tools available under the FOI Act and had engaged reasonably with the respondent, including making 41 decisions to release documents numbering over 1,300 pages, only one of which attracted an internal review application which was later withdrawn, and none of which were escalated to IC review. There was no evidence of any deficiency in the AHRC’s FOI processing that might explain the respondent's conduct. Conversely, the respondent breached the agreed request limit which they themselves proposed within days of the Commission accepting it. This conduct weighed heavily in favour of a declaration.

Having found the access actions made in the respondent's own name involved an abuse of process, the Commissioner found it unnecessary to determine whether the 100 anonymous and pseudonymous requests were in fact made by the respondent.

Key takeaways

• The bar for a vexatious applicant declaration remains high but not insurmountable. The onus may rest squarely on the applying agency, but a well-documented application, supported by a chronology of the agency's engagement attempts, comparative FOI statistics and examples of the applicant's correspondence, can discharge it.
• The volume of requests is assessed in context. A pattern of requests that would be manageable for a large department may unreasonably interfere with the operations of a small agency without a dedicated FOI team, especially where there is no finding that the agency is under-resourced.
• The tone and content of an applicant's correspondence matters. Requests framed around unsubstantiated personal attacks on named staff or extended histories of personal grievances unrelated to FOI can support a finding that the FOI Act is being used inappropriately.
• Before applying for a declaration, agencies should exhaust the other mechanisms available under the FOI Act such as s 15(3) consultation, s 15AA extensions and the practical refusal consultation process. An applicant’s refusal to take part in genuine consultation or moderate their conduct can  be given significant weight.
• A vexatious applicant declaration can be framed to capture requests the agency reasonably believes are made by or on behalf of the respondent, including under a pseudonym or by an agent, though in this case the anonymous applications were not necessary to the determination and therefore left undetermined.  

If your agency requires advice or assistance with the processing of FOI requests, please reach out to Chantal Tipene and our team of leading FOI specialists would be happy to assist.