Kim Dotcom, David Fisher, Justice Winkelmann, the GCSB and the Privacy Commissioner. No, they don’t walk into a bar – although that would be a thing to see - but all are featured in this decision. I won’t be commenting on it, for various obvious reasons, but the decision introduces a novel procedure into civil litigation, and has drawn some comment around the traps already. For example, the lawyer, blogger and journalist, Steven Price, says “the judge got this one flat wrong”. A former Privacy Commissioner, Sir Bruce Slane, has some views. I might not share them and do not endorse them, but I’m happy to provide a platform for our first guest post, from an esteemed and knowledgeable expert in the interests of commentary and debate - Privacy Commissioner John Edwards.

Privacy Act is not the right “pathway” for the courts - by Sir Bruce Slane

Justice Winkelmann has ordered Kim Dotcom to apply under the Privacy Act for his personal information held by David Fisher, as author of a book, The Secret Life of Kim Dotcom: Spies, Lies and the War for the Internet.

Mr Fisher had declined to voluntarily hand over the information to the Crown saying to do so “would have a chilling effect on the general public’s right to freedom of speech”.

The judge required Mr Dotcom to apply for his personal information and make available that which would be required by the court.

The judge declined to order Mr Fisher to produce the requested documents.

In my opinion, the course adopted by the court is not a correct use by the court of the Privacy Act.

Not all Mr Dotcom’s personal information is required; only that relating to the events that are the subject of a case brought by him and others against the Police and the Government Communications Security Bureau. In doing so, the judge has interpreted the media exemption in the Privacy Act as not applying to Mr Fisher as an author of a book, although it does not appear that he has been heard on this point or any other.

This has resulted in calls to widen the Privacy Act exemption to journalists who are authors producing investigative reporting in the form of a book, rather than in a news medium as defined in the Act. Mr Fisher is a reporter employed by the New Zealand Herald for which the news media exemption* would apply.

As the first Privacy Commissioner, I played a key role in the redrafting of the Privacy of Information Bill. I never considered the Privacy Act would be a suitable vehicle for regulating privacy in the news media. So I recommended to the select committee and the minister that an exemption should be drafted and I spent some time drafting definitions that proved acceptable to the media. In this, the late Paul Norris, a former television news editor, was particularly perceptive. The Act was passed unanimously.

The judgment of Justice Winkelmann deals with a number of applications by both sides relating to discovery - the legal term for the disclosure to parties of documents and other evidence relevant to the case. In another part of her judgment, she explains that the court can order discovery against a person who is not a party to the case but who may be in control of one or more documents that they would have had to “discover” if that person was a party. An order can be made that the documents should be made available for inspection and the court can order that the costs and expenses of doing so be paid by a party.

But the Crown agencies did not ask the judge for such an order. She gave no reason why she rejected Kim Dotcom’s suggestion that such an order was the way she should go.

Instead the Crown proposed following a practice that had developed some years ago. The judge describes it as a pathway. A legal precedent says the personal information is in the control of (in this case) Mr Dotcom because he has an enforceable right of access to the documents under Principle 6 of the Privacy Act and that those documents are therefore within his power as that word is understood in the law of discovery.

Principle 6 does not give an enforceable right to documents. It is a right to access one’s personal information, not necessarily the documents containing it. In some cases, for instance the requester may only get a summary of information. The right is not unconditional or untrammelled.

The courts seem to have overlooked a number of withholding grounds in the Act. For instance, information can be withheld if the disclosure of the information would involve the unwarranted disclosure of the affairs of another individual.

In respect of public sector agencies there are legal rights under the Privacy Act enforceable in a court of law. Otherwise, principle 6 does “not confer on any person any legal right that is enforceable in a court of law”. The judge acknowledged that but then proceeded to give her interpretation that Mr Dotcom could succeed in getting what the Crown wanted by this procedure.

This seems to me to pay no respect to the specific provision which keeps the courts right out of the access process. Is it desirable that the courts should appear to be circumventing a specific injunction of Parliament to stay out of this area? It could even be interpreted as putting pressure on the Privacy Commissioner to adopt the judge’s interpretation of the Privacy Act.

First, Mr Dotcom has to make a request to Mr Fisher. Mr Fisher is given time to consider the request. If he declines it, Mr Dotcom has then to complain to the Privacy Commissioner, not because he wants to but because the judge has told him to.

The Privacy Commissioner’s procedure is inquisitorial, conciliatory and informal. First, Mr Fisher can claim the news media exemption and he is entitled to be heard on this even if the judge has expressed her interpretation. The Privacy Commissioner cannot be bound by that. The Commissioner has to have regard for the protection of important human rights and social interests that compete with privacy, including the general desirability of the free flow of information and the recognition of the right of government and business to achieve their objectives in an efficient way.

The Commissioner then requests all the material and examines it to see if it fits any exemption claimed. If it does not, then Mr Fisher can put forward withholding grounds that might apply to some or all of it. The Commissioner may need to separate what Mr Fisher obtained while working for the Herald from what he obtained independently as an author.

Also if there is material mixed with extrinsic material, the holder can choose to give an accurate summary rather than copy whole documents, as the Act is concerned with personal information, not documents.

The Privacy Commissioner forms an opinion on what should be made available and what can be withheld. He cannot force his opinion on to either party.

If the Privacy Commissioner says some can be withheld, does Mr Dotcom have to go back to the judge or the Crown who have not seen the material to ask if he should accept the Privacy Commissioner’s opinion? Or does Mr Dotcom have to argue every point against his own wishes because of a court order.

Mr Fisher does not have to accept the Commissioner’s opinion. The Commissioner has a function of trying to bring about settlements in such cases. Can Mr Dotcom accept a settlement or has he to blindly oppose or do the Crown agencies decide for him?

If Mr Fisher still declines to make any of the information available, the Commissioner has to decide whether to refer the matter to the Director of Proceedings. Should he take into account that the requester has no wish to go further or that the judge has made an order that he must?

If the Commissioner refers it to the Director of Proceedings, the Director has to give Mr Fisher the opportunity to submit that the Director should take it no further. What does the Director do if Mr Dotcom says I don’t want you to take it any further but the real requester is the Crown who have got the judge to say I have to pretend to want it.

If the Director commences proceedings, it may only be in respect of some of the documentary information. At this stage, the Director takes over the case and Mr Dotcom drops out.

If the Director takes no action, is Mr Dotcom compelled to go to the Human Rights Review Tribunal and make an application for an order for access? How hard should he press the case pushed on to him by the Crown and the court? Does he have to employ counsel?

The tribunal of three will hear the parties and may or may not look at the material. It may agree to the withholding of some of the information. Evidence may have to be produced and legal arguments heard. The tribunal’s decision can be appealed to the High Court sitting with two other members.

Mr Fisher may only appeal if he has personally taken the case to the tribunal. If the tribunal’s decision in some respect goes against Mr Dotcom, is he obliged to appeal? And who decides? Could a judge of the High Court be put in the position of endorsing an appeal to the High Court? That cannot be right.

This should be enough to indicate that Mr Dotcom is far from being in control of what the Crown seeks to see. This is a case of the Crown wanting the courts to use a law for purposes for which it is not intended.

This procedure is designed for someone to use who genuinely wants personal information about themselves. Using it puts the original judge almost in the role of litigant by requiring a party to exercise more than a simple request.

Without hearing the Privacy Commissioner, the courts have been asserting that parties have discovery rights through the Privacy Act. The courts should respect the provision that keeps them out of the access rights against non-government agencies.

Authors and journalists are not above the law. It is difficult to understand why the Crown agencies did not ask the court to make an order for non-party discovery. The Evidence Act section 69 provides for a judge to consider making an order to protect a confidential communication or information or any confidential source, weighing conflicting interests.  One purpose of the Evidence Act is to protect the rights of confidentiality and other important public interests as well as to avoid unjustifiable expense and delay. After an exhaustive procedure under the Privacy Act, the judge may still have to look at confidentiality issues under the Evidence Act.

It is a long and costly pathway that the courts have chosen. They have been on the wrong track

*It would be premature to fiddle with the news media exemption on the basis of this one case. As far as I know, in the past 20 years, there have been no difficult cases of authors facing requests which the Privacy Act procedures have failed to deal with satisfactorily.

The author, Sir Bruce Slane, was New Zealand's Privacy Commissioner from 1992 to 2003. The views expressed in this article do not necessarily reflect the views of the Office of the Privacy Commissioner but are published for the purpose of contributing to debate about significant legal and privacy dilemmas.

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