Case note: Australian Criminal Intelligence Commission and 'BBX' (Freedom of Information)

Australian Criminal Intelligence Commission and 'BBX' (Freedom of information) [2026] AICmr 84 (11 September 2026).

In this recent decision, the Freedom of Information Commissioner, Alice Linacre (the Commissioner), considered whether an FOI applicant should be declared a vexatious applicant under s 89K of the Freedom of Information Act 1982 (Cth) (FOI Act).

The Commissioner declared the respondent a vexatious applicant for two years on the grounds that the applicant had repeatedly made access actions, and the repeated access actions involved an abuse of process due to the harassment and intimidation of agency staff. However, the Commissioner was not satisfied that the access actions constituted an unreasonable interference with agency operations, in part because of issues with the agency's own FOI processing, which the Commissioner considered may have contributed to the applicant’s actions.

The decision is a useful reminder that the bar for a s 89K declaration is a high one, and that the onus rests firmly with the agency to establish that an individual should be declared a vexatious applicant.

Background

The respondent had previously been declared a vexatious applicant in January 2021 for a period of two years. That declaration expired on 6 January 2023.

Between 6 January 2023 and 23 April 2026, the respondent engaged in 20 access actions with the Australian Criminal Intelligence Commission (ACIC), comprising 13 valid FOI requests, 5 internal review applications and 2 IC review applications, and sent the ACIC's FOI team 230 emails. On 23 April 2026, the ACIC applied for the vexatious applicant declaration on the basis that the respondent had repeatedly engaged in access actions and that the repeated engagement amounted to an abuse of process under the following:

• s 89L(4)(a) - harassing or intimidating an individual or an employee of an agency, and
• s 89L(4)(b) - unreasonably interfering with the operations of an agency.

The legislative framework

Under s 89L(1), the Commissioner may make a vexatious applicant declaration only if satisfied of any of the following:

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

Section 89L(4) defines ’abuse of process’ non-exhaustively to include the following:

1. harassing or intimidating an individual or an employee of an agency
2. unreasonably interfering with the operations of an agency
3. seeking to use the FOI Act for the purpose of circumventing restrictions on access to a document (or documents) imposed by a court.

In this decision, the Commissioner emphasised that a declaration imposes a serious restriction on a person's rights under the FOI Act, that the onus is on the applicant agency, and that the power is not intended to be used simply because an applicant is perceived as a ’nuisance’.

Had the respondent repeatedly engaged in access actions?

Considering the number of access actions made by the respondent, (20, as noted above), the Commissioner accepted that respondent had repeatedly engaged in access actions for the purposes of s 89L(1)(a)(i) of the FOI Act.

The Commissioner then considered whether these repeated access actions involved an abuse of process.

1. Abuse of process: Harassing or intimidating an individual or an employee of an agency (s 89L(4)(a))

In considering whether the respondent’s actions had amounted to ‘harassment and intimidation’, the Commissioner reviewed the respondent's correspondence and found that they had repeatedly directed derogatory, offensive and abusive language at ACIC staff. In finding the harassment limb established, the Commissioner had regard to ACIC’s submissions, which outlined the following:

• the tone and language of the respondent's correspondence with the FOI team
• the apparent targeting of individual staff, including repeated demands that matters be reallocated to other or more senior officers
• the use of unsubstantiated complaints (including baseless privacy complaints, notwithstanding that the ACIC is exempt from the Privacy Act 1988 (Cth)) to intimidate staff and seek better outcomes, rather than to particularise matters for investigation
• the ineffectiveness of the 2021 declaration in modifying the respondent's behaviour, and their refusal to alter their conduct after being asked to do so, and
• the operational measures the ACIC had needed to take to protect staff, including limiting FOI correspondence to first names and position numbers, and ceasing to allocate the respondent's matters to certain lawyers.

Considering the above, the Commissioner was satisfied that the respondent's conduct could reasonably be regarded as harassing and intimidating, pointing to the relentlessly abusive tone of correspondence, targeting of individual staff, use of complaints to intimidate rather than particularise matters, the ineffectiveness of the earlier declaration in modifying behaviour, and the operational measures the ACIC had been required to take to protect staff.

2. Abuse of process: unreasonable interference with the agency’s operations (s 89L(4)(b)

By contrast, the Commissioner was not persuaded that the respondent's access actions had unreasonably interfered with the ACIC's operations. Several factors weighed against such a finding being made:

• With 924 APS employees, the ACIC was properly categorised as medium-sized (not ’small’, as it had submitted) and appeared to allocate proportionate resources to its FOI function.
• The respondent's requests comprised only between 4% and 8% of total FOI requests received by the ACIC in the financial years 2022-23 to 2025-26 - not the 19% figure claimed by the ACIC.
• The Commissioner was of the view that the ACIC had in their correspondence with the respondent exhibited a pattern of adopting overly technical interpretations of the respondent's requests. The Commissioner noted that in ACIC treated three requests as withdrawn under s 24AB(7) in circumstances in which the respondent had in fact responded to the consultation notice. The Commissioner noted paragraph 3.226 of the FOI Guidelines, which provide that an FOI request should not be treated as withdrawn when the FOI applicant has responded to the request consultation notice in one of the ways outlined in s 24AB(6).
• The ACIC had refused to register five requests solely because they cited the ‘Right to Information Act’ rather than the FOI Act, contrary to the flexible approach called for by [3.33] of the FOI Guidelines where the applicant's intention to seek documents under the FOI Act is clear.

Terms of the declaration

The ACIC sought a declaration for four years, but the Commissioner considered a two-year term appropriate in the circumstances, considering the matters outlined above.

Key takeaways

• The bar for a s 89K declaration is high. The onus rests on the applicant agency and a ’nuisance’ applicant will not be enough. As per 12.7 of the FOI Guidelines, a ’clear and convincing need’ must be established.
• Sustained abusive language, targeting of named staff and unsubstantiated complaints used to influence outcomes may support a harassment and intimidation finding under s 89L(4)(a), particularly where an earlier declaration has failed to modify behaviour.
• If an agency is seeking to establish an abuse of process by way of ’unreasonable interference’ (s 89L(4)(b)) the volume and proportion of the applicant's access actions will be closely examined - agencies must be able to substantiate their figures.
• The duration and any additional terms of a declaration must be proportionate and  supported by evidence.

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