Finlayson found to have breached Dotcom’s rights

Written By: - Date published: 7:13 am, March 27th, 2018 - 59 comments
Categories: Abuse of power, Deep stuff, democracy under attack, national, Politics, same old national - Tags: ,

One of the most constitutionally appalling of the last Government’s activities was the treatment of personal information.  Whether it was releasing private information for political gain, or having two different responses to request for information depending on whether the requester was friendly to your Government and was going to attack the opposition or not, or frustrating journalists by refusing to answer their legitimate information requests there are copious examples showing why a change to the system is urgent.

But the treatment of Kim Dotcom will deserve its own chapter once the manual of how requests for private information should be handled by the Public Service is written.  Because the Human Rights Review Tribunal has just handed down a judgment which totally eviscerates the Government’s handling of an application by Dotcom for information concerning him.  Former Attorney General Chris Finlayson ought to apologise to Dotcom.  He should also apologise to the people of New Zealand for costing us $90,000 in costs not to mention considerably more in legal fees and institutional and public service costs.

The  Tribunal describes the background in these terms:

[1] In July 2015 Mr Dotcom sent an information privacy request to all 28 Ministers of the Crown and nearly every government department (the agencies). The 52 requests were in near identical terms and requested all personal information held about Kim Dotcom including information held under his previous names. The requests advised that because the information was required for “pending legal action”, urgency was sought. It is common ground that the litigation referred to included (inter alia) an extradition eligibility hearing in the District Court then due to commence on 21 September 2015.

[2] Nearly all the requests were transferred by the agencies to the Attorney-General.

[3] On 5 August 2015 the Solicitor-General provided a response on behalf of the Attorney-General in which the requests were declined on the stated ground that, in terms of the Privacy Act 1993 (PA), s 29(1)(j) the requests were vexatious and included information which was trivial. The Solicitor-General also advised that insufficient reasons for urgency had been provided.

The language of the refusal is confrontational although it does match grounds for refusal contained in Section 29 of the Privacy Act.

Dotcom claimed two breaches, that the transfer of all requests to Finlayson was not permitted, and that the the refusal to provide information was made without proper basis.

The Tribunal decided for Dotcom on each ground.

The hearing took 10 days which is remarkable given that most of evidence was agreed to and provided by way of an agreed bundle comprising 36 volumes.

Dotcom gave evidence.  Much of his evidence related to the Crown’s claim that his requests “were not genuine Privacy Act requests but rather a litigation tactic and a fishing expedition” and that in conducting the application he had “an ulterior motive”.

As to his veracity the Tribunal held that he was “a persuasive, credible witness. His evidence was, as submitted by his counsel, clear, thorough and consistent. We are satisfied by his evidence that the requests were genuine and based on an honest belief that in the unique circumstances of a truly exceptional case, the July 2015 Privacy Act requests were necessary to ascertain what personal information about him was held by government agencies in New Zealand. We accept his evidence that there was no ulterior purpose to the timing of the requests and that he simply wanted to receive the requested information so that if relevant, it could be used in the extradition proceedings and in other litigation.”

I would love to have seen Finalyson’s face as he read that part of the judgment.

My quick reading of the judgment is that the Tribunal said that Dotcom did not have to particularise the information he was asking for.  Once he asked for it there was an obligation to provide it.  There is no way that such a claim could be considered vexatious because it was within the provisions of the Act.  It is within the rights of an individual to ask under the Privacy Act for information a Government Department holds concerning him or her.

This rationale is recorded in the following passage:

In both civil and criminal discovery the relevance of the requested information is of critical importance to the obligation to disclose. Not so under the Privacy Act. No reason at all is required to justify a request for access to personal information. This follows from the importance of the right and from the practical reason that the requester does not know what information is held.

So the refusal was unlawful.

The justification for finding that the transfer was unlawful relied on a suggestion that the responses of all 52 agencies that received information requests were coordinated so that they all replied in the same way.  They should have exercised independent judgments, 52 times.  The advanced grounds that the transfers were necessary for the obtaining of legal advice or for the purpose of coordinating the response to the request with the Crown’s litigation strategy were outside the provisions of the Privacy Act.  Finlayson’s refusals were therefore without legal authority.  Round 2 to Dotcom.

This was not the end of the case.  The Crown submitted that because it could have made the same decision if it had got the law right the decision should be upheld.  The Tribunal gave this particular submission a bit of a blast.

[110]  We have difficulty accepting the proposition that a decision-maker who acts unlawfully (here, making a decision in a capacity he did not possess and in the absence of the requisite statutory belief on the part of the transferees) can make the reply, by way of defence, that the same decision could have been reached had all concerned acted within the law. In our view to accept a defence of this nature would require a good deal of cynicism as to the importance of state agencies and of state decision-makers acting within the law. Sight must not be lost of the principle that those who seek to uphold the law must themselves obey it. There is a substantial public interest in statutory decision- makers making their decisions in accordance with, rather than in disregard, of the law.

Dotcom has triumphantly tweeted that the extradition case is now over.  I somehow don’t think so although I anticipate that an abuse of process application is now being prepared.  It may hinge on what has or has not been disclosed and if disclosure throughout the course of the extradition proceeding is equal to or greater to what should have been disclosed under the Privacy Act.

I am sure this is not the end of things.  Apart from other consideration the thought that Government Departments have to hand out to people information held concerning them will cause lots of creased brows in Wellington.

And I suspect  this decision may be appealed.  Although the decision has a particular rational, principle based tone to it that may make it difficult to overturn on appeal.

59 comments on “Finlayson found to have breached Dotcom’s rights ”

  • Comments are now closed

  1. Gristle 1
    27 March 2018 at 8:03 am

    No doubt Wayne will rush into print attempting to justify the withholding of Dotcom’s information.

    My guess is that the NZ government’s motivation for continuing this saga is to limit itself to Dotcom’s financial claims against it should it fail in the extradition process. Should some agreement be struck on compensation that was say in the tens of millions, then the continued litigation could come to an end?

    The argument that the Crown has an obligation to continue the extradition process should not be treated as an absolute obligation requiring an inordinate commitment of time and money to prosecute. There are limits given NZ’s other judicial and social obligations.

  2. Tracey 2
    27 March 2018 at 8:57 am

    Let us look at what another Privacy Act breach has cost the taxpayer financially. Costs have been reserved but rarely reflect the actual costs incurred but here is the damages award.

    ” FORMAL ORDERS
    [255] For the foregoing reasons the decision of the Tribunal is that it is satisfied on the
    balance of probabilities that an action of the Crown (represented by the Attorney-
    General) was an interference with the privacy of Mr Dotcom and
    [255.1] A declaration is made under s 85(1)(a) of the Privacy Act 1993 that there
    was an interference with the privacy of Mr Dotcom by:
    [255.1.1] The transfer, without legal authority, to the Attorney-General of the
    information privacy requests made by Mr Dotcom in July 2015. The Attorney-
    General had no lawful authority, as purported transferee under the Privacy
    Act 1993, s 39(b)(ii), to refuse the requests on the grounds that they were
    vexatious and there was no proper basis for that refusal; in the alternative, if
    the transfers were lawful:
    [255.1.2] Refusing the information privacy requests on the grounds that they
    were vexatious when there was no proper basis for that decision.
    [255.2] An order is made under s 85(1)(d) and (e) of the Privacy Act 1993 that the
    agencies (including the Ministers of the Crown) to which the information privacy
    requests were sent by Mr Dotcom in the period 17 to 31 July 2015 must comply
    with those requests subject to the provisions of the Privacy Act 1993 and in
    particular (but not exclusively) Parts 4 and 5 of that Act. For the purposes of this
    order the date of receipt of the requests is to be taken to be the fifth working day
    which follows immediately after the day on which this decision is published to the
    parties.
    [255.3] Damages of $30,000 are awarded against the Attorney-General under
    ss 85(1)(c) and 88(1)(b) of the Privacy Act 1993 for the loss of a benefit Mr Dotcom
    might reasonably have been expected to obtain but for the interference.
    [255.4] Damages of $60,000 are awarded against the Attorney-General under
    ss 85(1)(c) and 88(1)(c) for loss of dignity and injury to feelings. “

  3. tracey 3
    27 March 2018 at 9:01 am

    Bennett
    Collins
    Finlayson

    Senior Cabinet Ministers all. All still in Parliament.

    And let us remember the Nats still havent learned or dontcwant to because despite all the flack they have attracted over their interpretation of the Privacy Act they breached it again by using names from a petition to tout for donations. This year.

    Side note: When working for leaky home clients I often made OIA requests for information needed for Tribunal hearings. Every request I made for that purpose got delayed rejected and sent to Ombudsmen and every time the hearing came before the info. That was also MBIE

    • Draco T Bastard 3.1
      27 March 2018 at 11:53 am

      And let us remember the Nats still havent learned or dontcwant to because despite all the flack they have attracted over their interpretation of the Privacy Act they breached it again by using names from a petition to tout for donations. This year.

      National consistently ignores the law. They don’t care what it says as they have the best lawyers in the country to get them off the criminal charges.

      About time we actually held them to account for it. Stop them actually doing this shit.

      Can you imagine the uproar that we’d hear from them when every single time their MPs broke the law they got removed from parliament and even jailed?

  4. tc 4
    27 March 2018 at 9:05 am

    It’s what they will not find that people need to be very concerned over. The lords of deflection, spin and plausible deniability only leave the slightest trace.

    Or just accept it as folks are becoming so numb to being sold out by their elected rep’s….council or wellington based they’ve all let NZ down over the state of this nation.

    • Michelle 4.1
      27 March 2018 at 1:18 pm

      tc some NZ folks appear to be both numb and dumb

      • tc 4.1.1
        28 March 2018 at 7:03 am

        watching the bs coming from local and regional councils who have failed to provide basic services and flogged off services/assets in the mix also is depressing.

        Sheeple fail to connect the dots and keep funding this network of beaurocratic bunglers looking to expand troughs here in the Waikato with tainui and watercare whilst fixing nada.

        Then there’s the appalling state of roads, sewage, library services etc etc

  5. lprent 5
    27 March 2018 at 9:11 am

    There is a clear intent contained in the privacy act about information held about an individual, and their right to access it themselves.

    That the Attorney General chose to conspire to deny that information from what is clearly a legitimate privacy act requests is simply heinous. That he did it for the purpose of pursuing a government legal action against that individual is simple malfeasance.

    Finlayson should have criminal charges laid against him personally. It is a trait that we do not want to encourage in servants of the public.

    • adam 5.1
      27 March 2018 at 9:13 am

      Hear, hear.

      • cleangreen 5.1.1
        27 March 2018 at 11:02 am

        Agreed as Finlason was always an arrogant man with a insulting manner to suit this ‘old white man’in a suit.

        He and his old guard must go now and we now need a new breed of honest balanced fairer set of “suits” as we are all going to the cleaners with these old guard still resident.

        ‘My comment as an old white man.’ not a politician.

      • Wensleydale 5.1.2
        27 March 2018 at 11:13 am

        Not terribly surprising to be honest. You can tell a lot about someone by the way they comport themselves, and Finlayson’s arrogance, pretentiousness and waspish demeanour are largely indicative of someone who believes he’s so much better than everyone else. As Attorney General, he seems to operate under the Judge Dredd code of conduct – “I am the law!”

        He also enjoys slagging people off for shits and giggles.

        http://thejackalman.blogspot.co.nz/2013/08/chris-finlayson-asshole-of-week.html

    • One Anonymous Bloke 5.2
      27 March 2018 at 9:17 am

      What Act could he be charged under?

      Edit: Crimes Act 116: conspiring to defeat justice?

      • tracey 5.2.1
        27 March 2018 at 9:19 am

        Perverting the course of justice?
        116 Crimes Act

        • One Anonymous Bloke 5.2.1.1
          27 March 2018 at 9:23 am

          *snap* 🙂

          • tracey 5.2.1.1.1
            27 March 2018 at 9:29 am

            But he wont. A person overboard in a yacht race is more important… than an Attorney General who has behaved unlawfully and impacted a person’s ability to defend themselves in Court…but then Collins got to stay having caused death threats against someone. I can only imagine if this happened in this Govt.

            Already Ardern is being houbded about nurses pay despute all this being the culmination of 9 years deliberate degradation of our Health systems by National.

            • Carolyn_Nth 5.2.1.1.1.1
              27 March 2018 at 10:52 am

              What’s the betting that Carol Hirschfeld’s resignation, and Claire Curran sliding around questions about her non-transparent meeting with Hirschfeld, will get more MSM coverage than this Finlayson’s action?

              • tracey …
                27 March 2018 at 11:33 am

                Yup

              • mary_a …
                27 March 2018 at 1:18 pm

                Carolyn_Nth … It is already. Hirschfield/Curran story headline news! No doubt this will be the biggie to hide the Finlayson breach.

                Media still in Natz pocket, dancing to its murky tune, covering Natz dirty backside every time, while misinforming NZers!

            • cleangreen 5.2.1.1.1.2
              27 March 2018 at 1:33 pm

              Tracey;

              “three years?”

              Try nine years tracey of deliberate destruction of our health system by National as I am still waiting for my Hernia operation that Gisborne hospital cancelled on me last year as for nine years i have repeatedly been turned down for this operation.

              I spend my days pushing the ruptured stomach lining in every day to avoid strangulation that would kill me, the medical notes said.

              it nine years of national gone a relief? My Hernia hopes so but Labour need to seriously putn that $225 Million in health and not a boat race in Auckland right?

              • Michelle …
                28 March 2018 at 10:39 am

                They (the gnats) don’t and didn’t give a stuff about Gisborne cleangreen my whanau are from Tologa Bay they fly them all the way to Hamilton for treatment, disgusting! I thought the provision of health services are based on need and providing for at risk populations not under the gnats it is all about money and profit not people.

      • cleangreen 5.2.2
        27 March 2018 at 11:10 am

        I hope they throw the whole book at this thug.

        Now we know why all these National top rankers were fleeing the national sinking ship don’t we now.

        We need to now await for Winston Peters case against quite a number f national party top rankers who were involved before the election with the leaking to press of Winston’s private personal information surrounding his Pension and his family.

        National your time is really uop now as there are none ready to prop up your corrupt crooked practices of “dirty politics” any more. Boo hoo.

    • tracey 5.3
      27 March 2018 at 9:18 am

      I agree. This is not an accident of interpretation.

      If nothing else too many of the last Cabinet deliberately flouted the Act or lacked understanding. The later is only an excuse the first time.

      It is abundantly clear that the last govt considered Dotcom public enemy number one on behalf of the USA. Whatever anyone thinks of Dotcom to attract this level of flagrant disregard of the law he ought to have taken lives or significantly impacted NZ in some heinous way. He did neither. This is the ultimate in disproportionate response. Illegal raid, illegal withholding of potential evidence. This is usually reserved for that other heinous anti NZ Nicky Hager.

      Calls for resignations? Hosking? Armstrong? Young? Roughan?

      • Draco T Bastard 5.3.1
        27 March 2018 at 11:56 am

        I don’t want resignations – I want criminal convictions. And I believe that NZ needs them. We cannot afford to have such a corrupt government.

    • Keepcalmcarryon 5.4
      27 March 2018 at 9:37 am

      I wondered the same, such a misuse of his position, can Finlayson be held personally legally responsible?
      Does the NZ law society discipline lawyers who break the law?

      • tracey 5.4.1
        27 March 2018 at 9:49 am

        He would argue he genuinely misinterpreted the Act. As a seasoned politician and lawyer he will have fake sincerity down pat

        • Keepcalmcarryon 5.4.1.1
          27 March 2018 at 9:54 am

          I’m a member of a profession, if I genuinely make a mistake I can still be held accountable. I am expected to perform to a standard.
          Maybe I should have been a lawyer. No consequences, sounds like quite the extra curricular life too..

          • tracey 5.4.1.1.1
            27 March 2018 at 10:06 am

            Add politicians…

            Bennett
            Collins both broke the same law as Finlayson. One to silence 2 critics and 1 as revenge for a colleague resulting in death threats against an innocent man. ALL were in Cabinet at the end of the last Govt. Accountability is only for poor people and opponents of Nats

        • McFlock 5.4.1.2
          27 March 2018 at 12:31 pm

          lol South Park: “I misinterpreted the rules“

        • Draco T Bastard 5.4.1.3
          27 March 2018 at 1:38 pm

          I don’t think it’s possible to misinterpret the act on this. It’s clear as day:

          Principle 6
          Access to personal information
          (1)

          Where an agency holds personal information in such a way that it can readily be retrieved, the individual concerned shall be entitled—
          (a)

          to obtain from the agency confirmation of whether or not the agency holds such personal information; and
          (b)

          to have access to that information.
          (2)

          Where, in accordance with subclause (1)(b), an individual is given access to personal information, the individual shall be advised that, under principle 7, the individual may request the correction of that information.
          (3)

          The application of this principle is subject to the provisions of Parts 4 and 5.

          Part four is the one that outlines permitted refusals and none of them apply.

          If anyone tried to say that they misinterpreted it they’d have to be assumed to be lying.

    • Bill 5.5
      27 March 2018 at 10:10 am

      It does seem to be something well in excess of merely “odd” that Finlayson should have pulled this shit.

      I agree he should be held to account. Government (being in) can’t be seen as a license to trash lives.

      • One Anonymous Bloke 5.5.1
        27 March 2018 at 10:14 am

        On that note…

        A woman who set up a blog to get at the rot behind sexual misconduct in the legal profession says she has been blacklisted by a Government agency…

        “Staff have been told not to associate with me or to post anything on the blog. I’ve discovered there are some powerful people with a lot to hide and have been shocked by the corruption that exists in parts of the legal profession and the public sector.”

    • Draco T Bastard 5.6
      27 March 2018 at 11:21 am

      Finlayson should have criminal charges laid against him personally. It is a trait that we do not want to encourage in servants of the public.

      QFT

      And he should be jailed for several years. As you say, this is malfeasance as a servant.

      Thing about this is that it must have been coordinated from within National to get all those requests given over to Finlayson for him to then find a way against the law. Which means that we have a full conspiracy to break the law here. It’s not just one National MP but every single one of the ministers that they had at the time.

    • Michelle 5.7
      27 March 2018 at 1:19 pm

      he should at least be made to pay the 90k back not it come out of our taxes

    • dukeofurl 5.8
      27 March 2018 at 3:09 pm

      Finalayson is still on the roll of practicing lawyers.

      Make a complaint, even better if KDC did, about his actions as Attorney General, include however in the Crown Law made the relevant decisions that have been ruled illegal.

    • Matthew Whitehead 5.9
      28 March 2018 at 12:38 am

      I would love it if we could take things that far, but I think it’s a precedent Labour wouldn’t want to set.

  6. Michelle 6
    27 March 2018 at 9:42 am

    so much for our judicial system being of the highest standard and not having any political interference.

    • tracey 6.1
      27 March 2018 at 9:51 am

      Meanwhile… a man overboard in a yacht race dominates news… I am sure this interference in our justice system will garner as much coverage as the Young Labour Party sexual assaults.

      • Keepcalmcarryon 6.1.1
        27 March 2018 at 10:02 am

        Fear not, the taxpayers union will surely be chasing this so Finlayson reimburses us.

  7. patricia bremner 7
    27 March 2018 at 10:04 am

    Dotcom’s case shows how the freedoms of the individual have been eroded in NZ.
    This case should be dismissed, as it is fallacious.

    • tracey 7.1
      27 March 2018 at 10:08 am

      Also the raid on Nicky Hager. Problem is it seems in NZ if enough people are fed myths about what an evil person you are the populace think you dont deserve justice.

      On the Dotcom thing I know quite a few people who think he is a bad person who own and use streaming boxes with a vpn.

  8. savenz 8
    27 March 2018 at 10:29 am

    Absolutely shocking.

    Of course people have an absolute right to get information held on them by government departments.

    How could impending legal action not be considered important.

    This is about honesty of government. Increasingly government officials are acting as childish bullies who wield too much power.

    And that leads to people not being able to trust the government. After a decade of Key, I’m not sure how many people do, anymore.

  9. dukeofurl 9
    27 March 2018 at 10:32 am

    You can see the ploy the Government used:
    Individual asks for personal information- not considered vexatious

    But by sending all requests to the Attorney general, you end up with 52 requests which are basically repeated, hence they pounced on the vexatious reason.

    It baffles me the Solictor general went along with this charade- isnt he supposed to be independent high quality legal advice ?
    When you think of all the legal battles between the lawyers from Crown Law and Dotcom you could almost see a complaint against the Solictor- general to the Law Society for ‘unprofessional conduct’ as he would have known the information was obliged to be provided AND used in legal action that his office has a leading role

    • Draco T Bastard 9.1
      27 March 2018 at 12:09 pm

      But by sending all requests to the Attorney general, you end up with 52 requests which are basically repeated, hence they pounced on the vexatious reason.

      And only a single one of those 52 should have ended up on the Attorney General’s desk and that’s only if Dotcom sent one there. For all 52 to end up there with a single answer means that we have prima facie evidence of a conspiracy to commit a crime by the 5th National governments ministers.

      It baffles me the Solictor general went along with this charade- isnt he supposed to be independent high quality legal advice ?

      Supposed to be – obviously isn’t which makes him part of that conspiracy.

      • dukeofurl 9.1.1
        27 March 2018 at 3:04 pm

        Youd think some tiny agency like say the Office of the Chief censor would easily say ‘no information held on Kim Dot Com’ and send it back to him.

        There must have been a ‘directive’ from the Attorney General to all 50 odd government agencies- Dont answer, send it all to me ( and Ill sweep it under the carpet)

    • tracey 9.2
      27 March 2018 at 6:11 pm

      And in fairness to dotcom he had to make 52 individual requests cos had he not he woukd have been told his request was too broad?

  10. cleangreen 10
    27 March 2018 at 11:13 am

    Control akin to a ‘dictatorship’ was when we have here under the national years sadly so good riddance to bad rubbish my dad would always say rightly.

  11. peter petterson 11
    27 March 2018 at 11:57 am

    Finlayson should compensate the state as well as liars like Key.

    • Draco T Bastard 11.1
      27 March 2018 at 12:11 pm

      By the looks of things the National Party should be paying that $6,8 billion that the country is going to end up owing Dotcom. Time for the Party of personal responsibility to take responsibility for their actions.

  12. Michelle 12
    27 March 2018 at 1:21 pm

    The party of personal responsibility and the party that boasted about its good economic management another Tui ad coming

  13. tracey 13
    27 March 2018 at 5:09 pm

    So, did this story actually make it to headline on tvnz herald or stuff websites?

  14. tracey 14
    27 March 2018 at 6:09 pm

    Mickey

    Given this is a second finding of illegal behaviour in the Dotcom case he must have a strong claim to have the extradition overturned for abuse of process?

    And then, what of his damages case?

  15. mpledger 15
    27 March 2018 at 11:31 pm

    If this is the defense that the requests “were not genuine Privacy Act requests but rather a litigation tactic and a fishing expedition” then it’s pretty weak.

    Every request for information is essentially a fishing expedition. If you knew what you were going to see then why bother looking. It’s the stuff that you don’t know about that has been recorded about you that you want to know about.

    And it’s not the govt’s job to guess what people’s motivations are for wanting that information. The law say they should provide it so they should provide it.

  16. Venezia 16
    28 March 2018 at 3:05 pm

    And this information has been buried by the MSM. It is not news. But much time & energy over two days to a beat up about an MP meeting with RNZ staff member.

  17. Rob 17
    28 March 2018 at 7:39 pm

    It would not be buried if the decision went the other way

  18. William Mac 18
    30 March 2018 at 5:12 am

    Time for Chris to be “de-radicalized by the Malaysians”

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