Kim Dotcom Wins Human Rights Tribunal Case Over Kiwi Government Withholding Info

from the another-mistake-by-nz dept

It’s really quite incredible how, at nearly every turn, the New Zealand government has managed to mess up the legal case against Kim Dotcom. The raid on his house was later declared to be illegal, using invalid warrants. Evidence that was seized from his home and illegally turned over to the FBI was ordered to be returned. Oh, and then there was the whole bit about conducting illegal surveillance on Dotcom, deleting evidence of that illegal spying, and ordering officials to “bury” information about that illegal surveillance to avoid embarrassing the Kiwi government.

And now we have the latest: A Human Rights Tribunal in New Zealand has declared that the New Zealand government violated Dotcom’s rights in withholding information from him. Specifically, in July of 2015, Dotcom had made an information request (in New Zealand it’s an “information privacy request” which appears to be a quasi-privacy/data protection-type right in New Zealand) to various officials in the government requesting whatever personal information they held on him. The recipients of the demands sent them to the Attorney General, who refused to comply with the demands, claiming they were “vexatious and included information that was trivial.”

The Tribunal disagrees. It goes through, in pretty great detail, the procedural issues at play here, including an attempt to discover this information by way of his extradition case, which was denied by the court. But that still left open the information privacy request. The court then goes through the question of whether or not it was even appropriate for everyone who received the request to hand them over to the Attorney General. This is done in almost excruciating detail, which we’ll save you from having to go through yourself (unless you’d like to dig in below). However, the tribunal sums up the issue by basically pointing out that the recipients of the request were not supposed to transfer those requests to the Attorney General in the first place, as they had no legitimate reason to do so under the law (the fact that Dotcom was fighting the government in an extradition case is not enough).

In these circumstances it was artificial for the Crown to argue that simply because the Attorney-General, Solicitor-General and Crown Law were the Crown?s legal advisers and conducting litigation against Mr Dotcom the transferring agencies could properly believe the information to which the requests related were more closely connected to the functions or activities of the Attorney-General, Solicitor-General or Crown Law as the providers of legal advice and representation to the Crown. If in the context of that litigation the Crown had wanted to coordinate its responses to the information requests and to the associated requests for urgency, it could have done so by giving advice to the agencies and by communicating any decision made by those agencies. No transfer under s 39 was required by the circumstances or permitted by s 39 itself

And, because of that:

As the transfers were not made in accordance with the Act the Attorney-General was not the lawful transferee under PA, s 39(b)(ii). The Attorney-General accordingly had no authority, as transferee, to refuse to disclose the requested information. In these circumstances Mr Dotcom has established that in terms of PA, s 66(2)(b) there was no proper basis for the refusal.

The next question on the docket was whether or not the requests were “vexatious,” as the Attorney General had argued in refusing to release the information. The government’s argument here was basically that it was “vexatious” because Dotcom had an “ulterior motive” to accessing the information, with that motive being to help him in his fight against being extradited to the US to face criminal charges. But the tribunal points out that this doesn’t appear to be true:

We make the specific finding that Mr Dotcom has amply satisfied us, to the civil standard, that contrary to the assertion by the Crown, he had no ulterior motive in making the information privacy requests. The requests were entirely genuine and not intended to disrupt the extradition hearing.

Indeed, the tribunal actually notes that if anyone seemed to be focused on “disrupting” the extradition hearing, it was the New Zealand government, listing out the various things the government did, including:

  • unsuccessfully applying to revoke his bail when his then solicitors and counsel were granted leave to withdraw.
  • unsuccessfully opposing the release of restrained funds for living and legal expenses.
  • unsuccessfully opposing an adjournment of the eligibility hearing scheduled for 2 June 2015.
  • applying to register in New Zealand the USA forfeiture order obtained in that country on the basis of a fugitive disentitlement doctrine, a concept unknown to New Zealand law. If successful, this would have meant that Mr Dotcom would have no funds to live on, let alone to defend the extradition proceeding.
  • unsuccessfully opposing, and seeking to strike out, Mr Dotcom?s judicial review of the decision by the Deputy Solicitor-General (Criminal) to authorise the Commissioner of Police to register the USA forfeiture order.
  • refusing, until 23 June 2015, to respond to the legitimate concerns as to funding for New Zealand counsel raised by counsel for Mr Dotcom on 29 April 2015.

The tribunal further pointed out:

By making the information privacy requests he was not seeking to be disruptive or vexatious. Rather, based on previous unsuccessful attempts to gain access to information held by various agencies (which had been the subject of judicial review and appeals), he was trying to follow what he understood to be the process identified by the courts as available to him in the circumstances. He was also anxious to avoid the requests being delayed by drawn out litigation as the goal was to obtain the information and to use it in evidence.

The tribunal also laughs off the idea that the government could refuse to hand over the information because it was “irrelevant.” As the ruling notes, how could Dotcom know if it was irrelevant until he had seen it?

There is also the point made by Mr Dotcom that without being given access to the information held by the Crown agencies, he cannot know whether the information is relevant to the extradition hearing. To require him to first establish relevance before being given access to the information turns the Privacy Act upside down and renders illusory the legal right of access to personal information held by state agencies.

There are a bunch of smaller claims made by the New Zealand government as part of this that the tribunal dismisses quickly — often criticizing the silly arguments made by the government. Here’s just one example of many:

The Crown?s submission is also difficult to accept given that not knowing what personal information was held by the agencies, Mr Dotcom could not be expected to identify information which was relevant to the stay application. As he said: ?you do not know what you do not know?. The suggestion by the Solicitor-General that Mr Dotcom could be more specific was, in the circumstances, not helpful.

Given all this, the Tribunal says that the information requests should never have been passed on to the Attorney General to review, and there was no basis to refuse to disclose the information requested. In terms of remedies, the Tribunal orders the original information requests to be fulfilled, and the Attorney General needs to pay Dotcom $30,000 “for the loss of a benefit Mr Dotcom might reasonably have been expected to obtain but for the interference” and another $60,000 for “loss of dignity and injury to feelings.” Dotcom can also petition the Tribunal to have his legal costs paid for by the New Zealand government, which I expect he’ll do.

On Twitter, Kim Dotcom has declared that this means his extradition case is “over,” though that seems to be a bit of an exaggeration:

I don’t know enough about New Zealand judicial process to know how true the statement is. It will certainly be interesting to see how it does impact that case, though. I can’t imagine it’s a good thing for the government. In later tweets, Dotcom also suggests that government officials have destroyed the information he is requesting, but we’ll see what happens when the request is finally fulfilled.

Either way, the book of examples of just how incredibly the New Zealand government has fucked up everything about this case at every single turn has now added yet another chapter.

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Comments on “Kim Dotcom Wins Human Rights Tribunal Case Over Kiwi Government Withholding Info”

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That Anonymous Coward (profile) says:

“The requests were entirely genuine and not intended to disrupt the extradition hearing.”
Of course having evidence or lack of evidence (from the Government destroying it as part of their continuing coverup) might have disrupted the hearing.

How much more does the bullshit US case have to cost NZ before they consider perhaps bending over backwards & throwing out every concept of their law?

Perhaps they worry they won’t film the LOTR remake/reboot in NZ if they don’t finish surrendering to what Hollywood demands, even if it screws their entire country again.

Wendy Cockcroft (user link) says:

Re: Re:

That drag ‘n’ drop thing the NZ government did might well have been an effort to be seen to placate the US government, which was no doubt leaning hard on them, without actually handing Dotcom over.

Or not.

I like to think that their heavy-handed Keystone Kops antics were deliberate because otherwise it means they’re idiots. I’m anti-authoritarian enough as it is.

Anonymous Coward says:

Re: Re: Ah copyright 'enforcement'...

Even if Dotcom does win against both the NZ government and the US and it is ruled for the NZ government and US to pay him etc. The US will most likely raise their middle finger at Dotcom and say you aint getting a cent and there is nothing you can do to get us to pay you. What will Dotcom do then to get the money from the US?

That One Guy (profile) says:

Re: Re: Re: Ah copyright 'enforcement'...

"Sure you can get the monetary recompense the court ruled that you were due, but would you look at that, turns out the computers are on the fritz and can’t handle a digital transfer.

Looks like if you want the money you’ll need to come pick it up. In person. In the US. Unless of course you don’t want the money, in which case simply stay where you are for at least a week, after which case we’ll assume you’re not interested and keep it."

James Burkhardt (profile) says:

Re: Re: Re: Ah copyright 'enforcement'...

Well, in theory he wouldn’t need to. Its established in the record that NZ seized and/or allowed to be seized everything and handed it over to the US. But the seizure went beyond anything necessary to establish the crime, and physical assets were seized in a manner contrary to NZ law, with illegally obtained warrants. This establishes the NZ government as the proximate cause of his deprivation of those assets, as they should have protected the rights of a NZ citizen residing in NZ. If NZ has issues with curing the violations of his rights, they could certainly attempt to recover from the US themselves.

Anonymous Coward says:

Re: Re: Re: Ah copyright 'enforcement'...

All Dotcom has to do after a favorable ruling that leaves the US owing him is go to World Court. Another favorable ruling to him over what the US owes him could be settled by him having a legal right to ignore all copyright and patent rights granted in the US.

Now wouldn’t that go over well?

Anonymous Coward says:

Re: Re: Re: Ah copyright 'enforcement'...

There was the one trade court case where they pissed the judge off so badly with their non-compliance that they were authorized to sell a certain retail equivalent ammount of media digitally. I don’t believe they followed through in that case, but it would be hillarious poetic justice if Dotcom received authorization to pirate hundreds of millions worth of content (and not RIAA inflated figures for 3 cds to a few thousand) as punishment for their overreach.

Anonymous Coward says:

“Either way, the book of examples of just how incredibly the New Zealand government has fucked up everything about this case at every single turn has now added yet another chapter.”

And how many more times of the NZ government and US have to be exposed of doing illegal things in this case before someone in the NZ government or US comes out and say “We could of got away with it it is want’t for those pesky kids”.

nerd bert (profile) says:

Malice vs. Incompetence

Either way, the book of examples of just how incredibly the New Zealand government has fucked up everything about this case at every single turn has now added yet another chapter.

Normally you should never attribute to malice that which can be adequately explained by incompetence.

This is not a normal case and I think we can rule out incompetence.

Anonymous Coward says:

You mean... Business as Usual?

“It’s really quite incredible how, at nearly every turn, the New Zealand government has managed to mess up the legal case against Kim Dotcom.”

It’s government, it is full of the same humans that lie, cheat, steal, rob, and generally allow their emotions to decide how they do their jobs. Kinda like all other humans on the planet. The ONLY incredible thing is how humans keep asking for more of it! It’s like people never remember that the people running government are composed of the same people that you would never trust with your safety, money, or privacy!

Anonymous Coward says:

Re: Re: You mean... Business as Usual?

As opposed to what? Do I need to offer an alternative solution every-time I tell someone they might not want to jump off a cliff? I assume that telling them not to jump off a cliff was a good solution on its own and to just… find a different way, whatever way that might be.

Or do you need to have your hand held, like most other humans?

The Wanderer (profile) says:

Re: Re: Re: You mean... Business as Usual?

I think the question is, “Since you’re saying all the humans on the planet are bad like this, who are you saying should be in government instead of them?”.

If you can’t suggest any alternatives that would be better, attacking people for not choosing a better alternative is hardly a reasonable or productive line to take.

Anonymous Coward says:

all that’s needed now is for Obama to grow a pair and appear in court, tell the truth (as an ex president, that may be difficult, being well trained in telling lies and bullshit) stating who got him to do what, why and for whom and perhaps the truth about what a bunch of self-righteous assholes those in Hollywood and the entertainment industries actually are and how they have inhibited so much from advancing, in order to stay in control of what they want, then maybe the world can evolve!!

Wendy Cockcroft (user link) says:

Re: Re:

Eh, that’d be the Attorney General, Eric Holder. As President I doubt Obama got any more involved than his successor Trump has.

You do know Trump is president now and if he wanted to he could tell Jeff Sessions to end the case. But he hasn’t. I daresay it’s because he doesn’t know about it and if he does I doubt he gives a rat’s.

Ninja (profile) says:

The thing is, even if you don’t sympathize with the guy (and I personally don’t), even if he actually did wrong things (I’m still not sure), everything that has been done to strip him the means to defend himself and to deny him due process gets you cheering on him and hoping he prevails in courts. And we are talking about the problems with NZ law enforcement. When you add the US things get much uglier.

Uriel-238 (profile) says:

I remember it was the day of the SOPA internet blackout.

When ICE raided the Dotcom manor with MPAA advisors in tow it put a weird pall on the retreat from SOPA in Washington. And we here on TD were all WTF?

I think this raid and a iPhone 5 prototype SWAT raid later both put into sharp relief that government agencies work at the pleasure of the corporations, not to serve the public.

ECA (profile) says:

Checks in the mail??

For all this evidence..
ALL of this could have been over in 2 years..YEARS AGO..

NOW for the Filing about LOSS OF BUSINESS. Interference of ??? is a Major case(forgot the name).

Also can we add Corporate Espionage??

Any thing more we can add??
Unless the USA passes the buck to the movie industry…THEY ARE GOING TO GET HIT HARD…

Fentex says:

What next..?

There’s a chance Dotcom may persue a private prosecution against the person of the once (we’ve had a change of government) Attorney General over this.

A private prosecution, for U.S readers (for I believe this doesn’t happen there), is when a person uses the courts to enforce criminal (as opposed to, say, contract) law the government has decided not to (so political reticence can be over-ridden by citizens acting on their own recognisance – the courts exist for all).

I don’t know if he will, but there seems a case to made that personal malice in abuse of office was directed at Dotcom – a criminal offence he may pursue prosecution of.

Anonymous Coward says:

slaying the dragon

The writing was on the wall from the very first day when Dotcom’s arrest on a minor non-violent crime charge was an even bigger and more extravagant operation than SEAL Team 6’s storming of Osama bin Laden’s secret hideout. After having made such a big investment in his presumed guilt, New Zealand authorities were no doubt under severe pressure to win the case by any means necessary, whether fair or foul.

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