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Dotcom v Attorney-General

Dotcom v Attorney-General

Case [2020] NZCA 551 10 November 2020

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA195/2019
[2020] NZCA 551

BETWEEN	KIM DOTCOM Appellant
AND	ATTORNEY-GENERAL Respondent

Hearing:	14 and 15 July 2020
Court:	French, Brown and Clifford JJ
Counsel:	R M Mansfield and S L Cogan for Appellant V E Casey QC and A P Lawson for Respondent B J R Keith and J M Hayward for Privacy Commissioner as Intervener
Judgment:	10 November 2020 at 11.00 am

JUDGMENT OF THE COURT

AWe answer the questions of law submitted for determination by this Court:
(1)Can a request for personal information under the Privacy Act 1993 be transferred by the recipient to another agency where the request seeks urgency and the basis for the urgency request is not a matter that the recipient is able to sensibly assess but the agency to which the request is transferred is the only agency able to properly evaluate the claimed basis for the urgency request?
No. A transfer of an information privacy request under s 39(b)(ii) of the Privacy Act is permissible only if the person dealing with the request believes the information to which the request relates to be more closely connected with the functions or activities of the transferee agency. The fact that a requestor seeks urgent treatment of an information request, whether or not in the same document as the request, does not comprise part of the information to which the information request relates.
(2)Is a request for urgency under s 37 of the Privacy Act 1993 a relevant factor for an agency in determining whether to refuse a request for personal information under s 29(1)(j) of that Act?
Yes, it may be a relevant factor. Although the mere fact of a request for urgency would not of itself generally be a proper basis for a finding of vexatiousness, we cannot exclude the possibility of there being circumstances where an inference of vexatiousness could be drawn from a request for urgency. Examples of such circumstances might include a grossly excessive number of requests for urgency or reasons given for urgency that are not credible. All will depend on the context in which the request for urgency is made.

BThe appeal is allowed to the extent reflected in the answers to the approved questions.
CThe proceeding is remitted to the Human Rights Review Tribunal for reconsideration of the issue of damages in respect of the interference with the appellant’s privacy by the wrongful transfer of the appellant’s information privacy requests.
DThe respondent must pay the appellant costs for a standard appeal on a band A basis and usual disbursements.

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Table of Contents

Para No
Introduction  [1]
The statutory framework  [8]
Factual background  [15]

Mr Dotcom’s information privacy requests  [16]
The transfers of the requests  [18]
The Solicitor-General’s letters to Mr Dotcom’s legal advisers             [22]
The Solicitor-General’s request for advice from the
   Privacy Commissioner  [29]
Mr Dotcom’s complaint to the Privacy Commissioner  [34]
Mr Dotcom’s claim to the Tribunal  [39]

The Tribunal’s decision

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Dotcom v Attorney-General

Details

AGLC: Dotcom v Attorney-General [2020] NZCA 551
Case: [2020] NZCA 551
Decision Date: 10 November 2020 at 11.00 am

CaseChat Overview and Summary

The Court of Appeal of New Zealand recently handed down judgment in Dotcom v Attorney-General. In July 2015, Mr Dotcom sent information privacy requests to 52 agencies, including all Ministers of the Crown, asking that the requests for all personal information held by the recipients be treated as urgent for the reason that the information was required for "pending legal action". The information requests were subsequently transferred to the Attorney-General who declined the requests on the ground that they were vexatious. Mr Dotcom complained to the Privacy Commissioner who rejected his complaint, but Mr Dotcom's claim to the Human Rights Review Tribunal was successful. The Tribunal found that the transfer of the requests to the Attorney-General was not lawful and that the decline of the urgency request did not justify declining the information privacy requests on the grounds of vexatiousness. The High Court allowed an appeal by the Crown on the ground that there was a proper and lawful purpose for the transfer of the requests and that, because of the insistence that all 52 requests were required to be responded to urgently, they were vexatious. Mr Dotcom sought leave to appeal to the Court of Appeal on two questions of law, namely whether a request for personal information under the Privacy Act 1993 can be transferred by the recipient to another agency where the request seeks urgency and the basis for the urgency request is not a matter that the recipient is able to sensibly assess but the agency to which the request is transferred is the only agency able to properly evaluate the claimed basis for the urgency and whether a request for urgency under s 37 of the Privacy Act 1993 is a relevant factor for an agency in determining whether to refuse a request for personal information under s 29(1)(j) of that Act. The Court of Appeal answered the questions in the negative and in the affirmative respectively. The appeal is allowed to the extent reflected in the answers to the approved questions. The proceeding is remitted to the Human Rights Review Tribunal for reconsideration of the issue of damages in respect of the interference with the appellant's privacy by the wrongful transfer of the appellant's information privacy requests.

Orders