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The following is a summary of a Human Rights Review Tribunal decision which has since been overturned by the High Court. You can read the High Court decision here [1 October 2018]. The Court of Appeal decision is here [10 November 2020].
In a recent decision, the Human Rights Review Tribunal had to decide whether the transfer of Kim Dotcom’s requests for personal information to the Attorney-General was permitted under section 39 of the Privacy Act and, if it was, whether there was a proper basis for the subsequent refusal of the requests.
In July 2015, Mr Dotcom requested all personal information about him (including information in his previous names) from nearly every government department. Nearly all the Crown agencies transferred their requests to the Attorney General. Mr Dotcom’s requests were refused under section 29(i)(j) of the Privacy Act on the basis that they were vexatious and, due to their broad scope, included information that was trivial.
Transfer of requests
The Crown argued that the Attorney-General was best placed to deal with the information requests in the context of ongoing litigation. However, in hearing the case, the Tribunal considered that section 39(b)(ii) did not allow information privacy requests to be transferred in the context of the Crown’s overall litigation strategy. It determined that the information in question was not more closely connected to the functions or activities of the Attorney-General.
The Tribunal referred to the October 2014 High Court decision Dotcom v USA, where Justice France noted that Mr Dotcom should seek his personal information from the relevant agencies rather than the extradition court.
Whether the requests were vexatious
In the Crown’s view, Mr Dotcom’s requests were intended to disrupt the extradition hearing. However, the Tribunal found Mr Dotcom to be a credible witness and rejected the idea that there was an ulterior purpose to his request.
The Tribunal found that s 29(i)(j) must be applied with caution, particularly when higher courts have directed Mr Dotcom to use the Privacy Act to seek his personal information.
The Tribunal noted that agencies are not well placed to determine whether a request is vexatious as they are not aware of the personal circumstances of the requester. In its view, it must be manifestly clear that the request is vexatious or the information requested is trivial.
Remedies
The remedies were:
Damages
1. Loss of a benefit
The Tribunal awarded Mr Dotcom $30,000 for loss of a benefit relating to his requests for personal information to multiple agencies in the context of his extradition litigation.
The Tribunal referred to Proceedings Commissioner v Health Waikato where the High Court took a serious view of a refusal to provide personal information in the context of litigation. It found that Mr Dotcom’s case was exceptional because he correctly believes that a wide range of government agencies have personal information about him and at least one agency (GCSB) has previously unlawfully collected information about him.
2. Loss of dignity or injury to feelings
The damages awarded for loss of dignity, or injury to feelings was $60,000.
The Tribunal accepted that Mr Dotcom had “clearly and unambiguously” established loss of dignity and injury to feelings, as defined in Hammond v Credit Union Baywide. It stated that anxiety and stress can amount to injury to feelings and this can be assumed or inferred.
The Tribunal considered Mr Dotcom’s loss of dignity and injury to feelings was substantial and noted the unfounded stigmatisation of his requests as vexatious and not genuine.
A more detailed summary of the decision on our website can be read here.
Image credit: Painted finch via John J Audubon's Birds of America
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