IM BLOG: Dealing with Vexatious Applicants Under FOI/RTI Laws: A National Overview

Every information management professional working with Freedom of Information or Right to Information requests has encountered them: applicants who submit repeated, overlapping or resource-draining requests that push the boundaries of legitimate access. But what exactly constitutes ‘vexatious’ behaviour and what powers do agencies have to address it?

The challenge lies in balancing two competing obligations: maximising public disclosure and maintaining government efficiency. FOI and RTI legislation across Australia recognises that while the right of access is fundamental, there are legitimate circumstances where that right can be curtailed to prevent abuse. Understanding how different jurisdictions approach this balance is essential for information professionals navigating these difficult situations.

Understanding Vexatious Behaviour

The term ‘vexatious’ comes from the verb vex, to cause annoyance, frustration or worry. In the FOI/RTI context, vexatious applicants exhibit characteristics that go beyond legitimate information seeking. They may submit numerous requests with no genuine information purpose, make repetitive requests for the same or substantially similar information or engage in patterns of behaviour designed to harass or overwhelm agency resources rather than obtain information.

The impact on agencies is significant. Vexatious applicants can create substantial and unreasonable diversions of resources, pulling staff away from processing legitimate requests and other core functions. They can undermine the integrity of the FOI/RTI system itself, creating backlogs that affect all applicants and generating cynicism about the genuine purpose of access laws.

A Patchwork of Approaches Across Australia

While there are common threads across Australian jurisdictions, the specific provisions for dealing with vexatious applicants vary considerably. Here's how each jurisdiction approaches the issue:

Common Threads and Key Differences

Despite jurisdictional variations, several common approaches emerge:

Substantial and Unreasonable Diversion - almost every jurisdiction recognises that requests which would substantially and unreasonably divert agency resources can be refused or managed differently. This is the most widely adopted protection across Australia.

Repeat Requests - many jurisdictions specifically address situations where applicants submit repeated or substantially similar requests, allowing agencies to refuse processing where information has already been provided or decisions made.

Formal Declarations - some jurisdictions, including the Commonwealth, Queensland, and Northern Territory, provide mechanisms for formally declaring an applicant vexatious, which can affect how their future requests are handled.  Others have vexations application provisions.

Review Rights - importantly, all jurisdictions provide some form of independent review (through an Information Commissioner, Ombudsman or tribunal) ensuring that decisions to limit access are subject to external scrutiny, and those review processes can also dismiss matters as vexatious.

The key differences lie in the specificity of provisions and the threshold for invoking them. Some jurisdictions offer broader discretion, while others require meeting specific criteria before refusing a request on vexatious grounds.

Practical Implications for Information Professionals

Understanding your jurisdiction's specific provisions is crucial when dealing with potentially vexatious situations. Documentation becomes critical.  You need to demonstrate not just that a request is annoying but that it meets the legal threshold for refusal or different processing.

Consider these practical steps:

• Track patterns - document the history of requests from particular applicants, noting similarities, timing, and resource impact
• Calculate costs - quantify the time and resources required to process requests to demonstrate substantial diversion
• Seek advice early - consult with legal advisors or FOI/RTI specialists before refusing requests on vexatious grounds
• Consider alternatives - explore whether negotiation, scope narrowing or practical refusal reasons might resolve issues without formal vexatious declarations
• Understand review paths - know which review body has jurisdiction in your state or territory and what standard of review applies

The Balancing Act

The existence of vexatious provisions in FOI/RTI legislation reflects a pragmatic recognition: unlimited access rights, without any mechanism to address abuse, would ultimately undermine the system for everyone. Resources diverted to processing vexatious requests are resources unavailable for legitimate applicants.

Yet these provisions must be applied carefully. The risk of overreach - labelling difficult or persistent applicants as vexatious when they're exercising legitimate rights - is real and can have a chilling effect on access. This is why independent review mechanisms are essential, providing a check on agency decisions and ensuring the vexatious label isn't applied inappropriately.

For information professionals, navigating vexatious applicants requires balancing competing pressures: protecting agency resources while respecting access rights, documenting genuine concerns while avoiding defensive reflexes and applying legal provisions while maintaining the spirit of openness that FOI/RTI laws embody.

The landscape varies across Australian jurisdictions, but the challenge remains the same: recognising when legitimate access crosses into vexatious behaviour and responding appropriately within your jurisdiction's legal framework. Understanding these provisions isn't about finding ways to refuse requests, it's about ensuring that the FOI/RTI system remains sustainable, fair and accessible for all legitimate applicants.

Based on the RIMPA Live 2025 presentation Dealing with 'Vexatious' applicants under FOI/RTI laws' by Mick Batskos, Executive Director, FOI Solutions.

Meet your blog author:

 

Mick Batskos

Mick is the Executive Director, FOI Solutions, Doyles Guide Leading Administrative & Public Lawyer 2025, 2024, 2023, 2021. Celebrating over 27 years in acting only for government agencies and over 37 years in the legal profession.