Judgment: Dotcom Privacy Request Damages Overturned

CIV-2018-485-286
[2018] NZHC 2564

BETWEEN

THE ATTORNEY-GENERAL
Appellant

AND

DOTCOM
Respondent

[…]

What this case is about

[10] This case involves issues arising from an “everything” request made by Mr Dotcom and addressed to every Cabinet Minister and almost all Government departments (some 52 entities in all). The requests were made between 17 and 31 July 2015. Although there were some minor differences in wording, the requests were materially identical. Mr Dotcom also invoked s 37 and asked that his information privacy request be treated with urgency and gave as his reason that: “This information sought is required urgently because of pending legal action”.

[11] It was common ground that the “pending legal action” alluded to was proceedings relating to a hearing on the eligibility of Mr Dotcom for extradition to the United States of America, which was scheduled to commence in the District Court on 21 September 2015, a matter of seven to nine weeks after the sending of the requests.

[12] Almost all of the agencies receiving the requests transferred them to Crown Law, to be dealt with by the Attorney-General. The Attorney-General declined the requests on the basis that they were vexatious.

[13] Mr Dotcom complained to the Privacy Commissioner in relation to the declining of the requests. However, the complaint related not to all 52 agencies but only to the actions of nine named agencies.

[14] On 15 June 2016, the Privacy Commissioner rejected Mr Dotcom’s complaint. The rejection of Mr Dotcom’s complaint by the Privacy Commissioner entitled him to take the matter to the HRRT, which he did.

[15] The HRRT heard the matter over 10 days in April and May 2017 and issued a decision dated 26 March 2018 upholding Mr Dotcom’s complaint and awarding him various remedies, including some $90,000 in damages.

[16] It is that decision the Attorney-General has appealed. The appeal gives rise to three main issues: (a) the lawfulness of the transfer of the requests to Crown Law;

(b) whether the requests were vexatious; and

(c) whether the remedies awarded by the Tribunal were appropriate, both in terms of jurisdiction and, in relation to damages, quantum.

[…]

[19] This Court is assisted in its task by having two members drawn from the HRRT Panel sit as part of the Court.

[…]

Outcome

[239] The appeal is allowed. We find 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, on the ground that the information sought was relevant to the eligibility proceedings, they were vexatious.

[240] Had we been required to determine the issues of remedies, we would have quashed the remedies ordered against those entities that were not defendants; set the awards of damages aside on the basis they were wholly erroneous and remitted the question of damages to the HRRT for determination in accordance with the principles outlined in this decision.

[241] We invite the parties to settle costs themselves but, in the absence of agreement, the appellant is to file a memorandum within 14 days of this decision, with the respondent to file a memorandum in reply within 14 days of receipt of the appellant’s memorandum.

Full judgment: 2018NZHC2564_AGvDotcom.pdf