An agency, the Minister or the Information Commissioner may apply to the NSW Civil and Administrative Tribunal for an order to restrain a person from making unmeritorious access applications.
The object of the Government Information (Public Access) Act 2009 (GIPA Act) is to open government information to the public to maintain and advance a system of responsible and representative democratic government.
The GIPA Act places various obligations on agencies within NSW in respect of their publication and release of the information that they create and hold. The GIPA Act also provides rights for persons to apply for access to government information.
However, this right of access is not absolute and should not be abused.
In 2015, in the first cases of their kind the NSW Civil and Administrative Tribunal (the Tribunal) made orders to restrain the making of unmeritorious access applications.
These decisions in Pittwater Council v Walker  NSWCATAD 34 and Palerang Council, Queanbeyan City Council and Goulburn Mulwaree Council v Powell  NSWCATAD 44 show that in certain circumstances, public interest considerations favour orders restraining persistent and unmeritorious applications requiring an unreasonable and substantial diversion of resources by an agency.
The Information Commissioner made submissions in both cases and the Tribunal agreed with the Information Commissioner that persistent and repeated access applications by individuals for the same or similar government information may be behaviour that impacts upon an agency’s ability and resources to promote open access to information to the public more generally.
The Tribunal has, under section 110 of the GIPA Act, the power to make orders to restrain a person from making unmeritorious access applications.
The Tribunal, in the Pittwater case, identified that there are three gateways outlined in section 110 of the GIPA Act that an application to the Tribunal for a restraint order must pass. The gateways to be satisfied are that:
- the person has made at least three access applications to one or more agencies, and
- in the two years prior to the request for an order, and
- where the agency or agencies decided that applications lacked merit.
Even where the gateways are met, the Tribunal still retains the discretion to grant or not grant the restraint order.
The effect of a restraint order is that a person cannot make an access application to an agency without first obtaining the approval of the Tribunal. If the person makes an application to the agency without obtaining that approval, the application is taken to be invalid and the agency will not have to deal with it.
Who can make an application for a restraint order?
An application for a restraint order can be made to the Tribunal by:
- an agency who has received an access application from the person – even where the agency may not have decided the access application,
- the Minister, or
- the Information Commissioner.
When can an application be made?
It is important to note that an application for a restraint order can only be made if there have been three or more access applications in the previous two years that have lacked merit.
In Palarang the person had made 37 access applications to the agencies and 18 were lacking in merit. In Pittwater the person had previously made 29 access applications and 15 were lacking in merit.
When is an access application to be regarded as lacking in merit?
As provided in section 110(2) of the GIPA Act an access application is to be regarded as lacking in merit if:
a) the agency decided the application by refusing to deal with the application in its entirety
b) the agency decided the application by deciding that none of the information applied for is held by the agency, or
c) the access applicant’s entitlement to access lapsed without access being provided (including as a result of not paying a processing charge payable).
Section 110(2) of the GIPA Act is clear that these are the only circumstances that are relevant to take into account when considering whether the access applicant lacks merit.
What role does the Information Commissioner have in the Tribunal proceedings?
The Information Commissioner’s role is to assist in the Tribunal’s examination of the issues relevant to process and matters of interpretation of the GIPA Act. The Information Commissioner does not appear at the request of or for either party.
The Information Commissioner has a right to appear and be heard in proceedings pursuant to clause 9(4)(a) of Schedule 3 to the Civil and Administrative Tribunal Act 2013 (CAT Act). This right of appearance applies where an applicant is seeking orders to restrain a person making unmeritorious access applications.
Can the Tribunal look at other issues?
The Tribunal can take into account any relevant matter that is consistent with the scope and purpose of the legislation in exercising its discretion under section 110(3) of the GIPA Act.
The Tribunal in the Palerang case noted and agreed with the observation of Deputy President Constance in Sweeney v Australian Information Commissioner  AATA 539 that the impact on the individual should be proportionate to the interests which the decision-maker is seeking to protect.
In the Palerang case the Tribunal considered the conduct of the Respondent and section 58 of the CAT Act where the power for the Tribunal to make an order is subject to such conditions as the Tribunal specifies.
The orders made in Palerang not only restrained the person from making access applications to the three agencies but also limited the way access applications were to be presented to the agencies and the language used in the access applications.
Can a restraint order be limited to kinds of information or to certain agencies?
Yes, a restraint order may be limited to certain types of information or to identified agencies (section 110(3) of the GIPA Act).
The Tribunal has, in considering the application for a restraint order, firstly looked to the type of order sought by the agency or agencies. The Tribunal may consider those access applications lacking in merit to determine if there is a particular type of information sought.
The Tribunal has been guided by the parties and the evidence presented on these matters.
The agency may, when applying to the Tribunal for a restraint order request specific terms or conditions. The agency may identify that the order be limited to access for particular kinds of information, that the order be for a specified time and include other matters that have led to the decision to request an order of this kind.
The Tribunal has considered submissions made by the parties in relation to the form and content of the orders to be made.
What happens if a restraint order is granted?
If a restraint order is granted, then the person who the order is against is only able to make an access application to the agency once the Tribunal has approved the access application. This requirement remains in place for the term of the restraint order.
The person must file any future access applications with the Tribunal and then the Tribunal will list the matter for hearing to consider whether to grant leave.
The restraint order may also limit the number of access applications that can be made by the person in a specified period.
If the person who is the subject of the restraint order either makes access applications directly to the agency or exceeds the number of allowable applications in contravention of the order then these applications would not be valid.
Can a person who is the subject of a restraint order make access applications to other agencies without applying to the Tribunal first?
Yes, a person who is the subject of a restraint order may make access applications to other agencies without applying to the Tribunal first. That is, agencies not named in the restraint order.
The circumstances where the person must apply to the Tribunal for approval to make an access application to an agency are those set out in the restraint order.
In the Palerang case the restraint order was granted for three agencies (local councils).
How long does a restraint order last?
This is a matter for the Tribunal. In the two orders made to date, one was for a period of two years, the other is open ended.
For more information
Contact the Information and Privacy Commission
NSW Civil and Administrative Tribunal (NCAT):
Telephone: 1300 00 NCAT or 1300 006 228 and follow the prompts
Interpreter Service (TIS): 13 14 50
National Relay Service for TTY Users: 13 36 77
NOTE: The information in this fact sheet is to be used as a guide only. Legal advice should be sought in relation to individual circumstances.