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.
Filed Under: human rights tribunal, information privacy request, information request, kim dotcom, new zealand