Human Rights Review Tribunal considers proper basis for declining and transferring Privacy Act requests

The spotlight is on data protection, both on a national and international level. This follows the proposed reform to the Privacy Act 1993 (Act), which is working its way through the Parliamentary process, and the implementation of the European Union’s General Data Protection Regulation. In a space where increasing sanctions are forecast, we now have a decision from the Human Rights Review Tribunal (HRRT) awarding $90,000 in damages for breaches of the Act. This shows the momentum that our privacy rights are gaining in our institutions.

In the decision of Dotcom v Crown Law Office,[1] the HRRT found that the Crown had interfered with Kim Dotcom’s privacy in declining 52 near identical requests to various Ministers and government departments for all personal information held about him. The decision provides useful guidance on when it is permissible for an agency to transfer a request for personal information made under the Act to another agency and when an agency may refuse to disclose personal information on the basis that the request is frivolous or vexatious, or the information requested is trivial.

What are the key facts?

In July 2015, Mr Dotcom made 52 information privacy requests under section 34 of the Act to all 28 Ministers and nearly every government department (Government Departments) requesting all personal information held about him. The requests sought urgency on the basis that the information was required for “pending legal action”. The pending legal action included Mr Dotcom’s extradition eligibility hearing in the District Court then due to commence on 21 September 2015.

Nearly all of the Government Departments transferred their requests to the office of the Attorney-General under section 39 of the Act.

On 5 August 2015, the Solicitor-General provided a response on behalf of the Attorney-General in which Mr Dotcom’s requests were denied on the basis that they were vexatious and included information which was trivial under section 29(1)(j) of the Act. The Solicitor-General also advised that there were insufficient reasons provided for urgency.

The primary issue before the HRRT was whether Mr Dotcom had established that there had been an interference with his privacy, particularly:

  • whether the transfer of the requests to the Attorney-General was permitted under section 39 of the Act; and
  • whether there was a proper basis for declining Mr Dotcom’s requests under section 29(1)(j) of the Act.

Ultimately, for the reasons set out below, the HRRT found that there was no proper basis for declining Mr Dotcom’s requests and that there had accordingly been an interference with his privacy. Mr Dotcom was awarded damages of $90,000: $30,000 for the loss of the benefit Mr Dotcom might reasonably have been expected to obtain but for the interference with his privacy and $60,000 for loss of dignity and injury to feelings.

Read the decision.

Was the transfer of the requests to the Attorney-General permitted?

Section 39(b)(ii) of the Act authorises an agency to transfer a request for personal information to another agency if it believes that the information requested is more closely connected with the functions or activities of that agency.

In arguing that the transfer to the office of the Attorney-General was appropriate, the Crown relied on the link between the request and the ongoing litigation with the Crown. In particular, it argued that the information requested was more closely connected with the functions of the Attorney-General because the requests were not genuine, but rather a litigation tactic and a fishing expedition, and required a coordinated and consistent response. By that time, Crown Law had been leading the Crown’s litigation against Mr Dotcom for more than three years.

The HRRT found that the transfers took place in the absence of a properly grounded belief that the information requested was more closely connected with the functions or activities of the Attorney-General. It held that the phrase “more closely connected” under section 39(b)(ii) must be given proper weight and that it is the personal information to which the request relates which must be believed to have that closer connection with the functions or activities of the proposed transferee agency. In other words, the proposed transferee ought to have had some prior engagement or dealing with the information sought.

In the present case, the transfers to the Attorney-General were found to be in his capacity as a Law Officer representing the Crown in litigation against Mr Dotcom. It was a mechanism to assist the Crown’s legal advisors to better manage the Crown response to the requests in the context of the litigation. The HRRT concluded, therefore, that there was an insufficient connection between the activities of the Attorney-General and the information sought.

Was there a proper basis for declining the requests?

Section 29(1)(j) of the Act allows an agency to refuse to disclose information if “the request is frivolous or vexatious, or the information requested is trivial”.

The heart of the Crown’s rationale for declining the requests was its view that Mr Dotcom’s requests were not genuine and were instead intended for the improper purpose of disrupting the extradition hearing and were therefore vexatious. The Crown relied on the broad scope of the request (which sought all personal information held by the Government Departments and Ministers about Mr Dotcom) that made compliance difficult or impossible, the request for urgency and the fact that, as a result of its breadth, it would include information that was trivial.

In considering the meaning of “vexatious”, the HRRT said that whether a request is vexatious “is a judgment which can only be reached after an overall objective assessment has been made of the entire context in which the request has been made”.[2] There must be an element of impropriety with the request. It emphasised that agencies must exercise caution in declining access on the grounds that a request is frivolous or vexatious as agencies are not aware of the personal circumstances of the requester or aware of the use to which the information is to be put. Under the Act, a requester is not required to justify a request for access to personal information (although reasons must be given for urgency if it is sought).

The HRRT concluded that on the facts known at the time, there was no reasonably justifiable basis for the Crown to decline the requests. Declining the request for urgency did not justify declining the requests themselves on the grounds of vexatiousness. While Mr Dotcom’s requests were broad in scope, the HRRT observed that such broad requests were not uncommon. It noted that, in most circumstances, it is not possible for Privacy Act requests to specify exactly which information is sought and attempts by the requester to list categories of information potentially held by the agency are both unnecessary and unhelpful. Importantly, the “frivolous or vexatious” ground cannot be used to decline an access request when what is really being asserted by the agency is that the information cannot be readily retrieved.

What does this mean for you?

This decision is a timely reminder that on receipt of a request for personal information, an objective assessment of the entire context in which the request is made is required before determining whether a request is vexatious, frivolous or trivial. A requester is not required to give reasons for a request. Further, the relevance of the requested information to the requester is not a reason to deny providing the information sought.

It is also important for agencies to keep in mind that a blanket request for ‘all personal information’ is permissible under the Act and requires the agency to provide all information which is readily retrievable unless there is a proper basis for withholding it under the Act. A blanket request for all personal information is not a proper basis for categorising a request as vexatious.

Footnotes

[1] [2018] NZHRRT 7.

[2] At [149].

Who can help

Oliver Skilton

Partner - Dispute Resolution and Litigation

Oliver provides advice and advocacy as counsel in complex and often strategically important cases. He has a broad corporate and commercial law practice with a focus on investigations, prosecutions and civil proceedings initiated by regulators. He also advises clients in contractual, shareholder and fair trading disputes and on commercial contracts that might have a contentious angle.  He has a particular interest in privacy and data protection including the proposed reforms of the Privacy Act and the introduction of the General Data Protection Regulation (GDPR).

Oliver joined MinterEllisonRuddWatts in 2010 having worked as a litigator at Clyde & Co in London and Clayton Utz in Sydney.

Oliver Skilton

Partner


Dispute Resolution and Litigation
Auckland

P: +64 9 353 9731
M: +64 27 513 7594
Email

Briony Davies

Partner - Public Law

Briony is an experienced advisor and advocate in public law and regulatory matters. Her expertise is in the development and application of regulatory frameworks, public law litigation and dispute resolution, privacy and data protection, regulatory compliance and enforcement, and crisis management.

Briony has provided a wide range of strategic, legal and litigation advice across the airports, electricity, gas, telecommunications, primary production/processing, transport and financial services sectors. Her clients have included large regulated corporates, government agencies, quasi-regulatory bodies, industry groups, political parties and educational institutes.

Briony Davies

Partner


Public Law
Wellington

P: +64 4 498 5134
M: +64 27 444 9736
Email

Gillian Service

Partner - Employment

Gillian is an experienced advocate with a pragmatic approach that is highly valued by clients. She helps clients manage risks and protect business proprietary interests. Gillian negotiates executive severance arrangements and represents clients in personal grievance claims through all levels of the New Zealand court system.

Her broad employment practice includes advising on restraints of trade and protection of confidential information; industrial relations and collective bargaining matters; restructuring programmes including outsourcing, redundancy and consultation processes; and health and safety matters.

Gillian is an internationally recognised employment law specialist, with significant experience practicing in top tier law firms in New Zealand, Scotland and England.

Gillian Service

Partner


Employment
Auckland

P: +64 9 353 9817
M: +64 21 366 760
Email

Megan Richards

Partner - Employment and Public Law

Megan leads both the public law team and the Wellington employment team and acts for both public and private sector clients. She has practiced law for over 20 years in top tier firms in New Zealand, Australia and London, and sits on the partnership’s board.

Her practice traverses strategic, litigious and time-critical day-to-day advice on all aspects of Public law and Employment related law. Megan regularly acts for numerous government departments and crown entities (including central government education agencies).

Bringing significant experience to all employment related matters, Megan regularly advises on drafting employment agreements and HR policies, managing poor performance, restructuring and redundancy, disciplinary investigations and dismissals, leave entitlements, minimum standards compliance, secondments, fixed term employment, KiwiSaver, collective bargaining, independent contractor arrangements, establishing business in NZ and recruiting staff, and restraints of trade and other post termination obligations.

As a recognised expert in Employment law, Megan is on the Editorial Boards of employment publications and is also the co-author of the Laws of New Zealand Employment chapter. As a recognised expert in Public Law, Megan is also an external member of the Legislation, Design and Advisory Committee (which is an appointment by the Attorney General).

Megan is also a Public Law expert and advises on exercise of statutory powers, legislative drafting, discrimination and judicial review proceedings, risk management and legal compliance and governance.

Megan’s leading expertise across Employment and Public Law is consistently noted in independent national and international peer guides, including Chambers Global and Chambers Asia Pacific.

She also has specialist expertise in PPPs having acted for the Ministry of Defence (UK) on their defence procurement and Railtrack plc on the privatisation of the UK railway.

Megan Richards

Partner


Employment and Public Law
Wellington

P: +64 4 498 5023
M: +64 21 676 430
Email

Jennifer Hambleton

Senior Associate - Dispute Resolution and Litigation

Jennifer is a member of our Dispute Resolution team with strong experience on contentious and non-contentious competition and consumer law matters and general commercial litigation.

Her expertise includes competition and consumer law, contract, franchising and corporations law disputes.

Jennifer has extensive experience as a commercial litigator. She has represented commercial and government clients on a number of large complex disputes in the Federal and Supreme Courts in Australia, the Australian Competition Tribunal and the High Court and Court of Appeal in New Zealand. Jennifer has particular expertise acting on competition enforcement actions, consumer law actions, actions for breaches of directors duties, contractual disputes and negligence actions.

Jennifer has advised clients in the technology and telecommunications, insurance, gambling, airline, accommodation, FMCG, grocery, pharmaceuticals and energy industries on a range of commercial issues. This includes advising clients on the implications of commercial terms such as warranties and indemnities, termination rights, restraints of trade and confidentiality, compliance with the Commerce Act, Fair Trading Act and Companies Act and product liability issues.

Jennifer Hambleton

Senior Associate


Dispute Resolution and Litigation
Auckland

P: +64 9 353 9794
M: +64 27 541 0994
Email

June Hardacre

Senior Associate - Employment

June has broad experience in all aspects of both New Zealand and English employment law. June regularly advises on senior executive appointments and terminations; restraints of trade and protection of confidential information; performance and disciplinary processes; restructuring, redundancy and outsourcing programmes; industrial relations and collective bargaining matters; whistleblowing and protected disclosures; and employee data privacy issues. June has been involved in litigation at all levels of the New Zealand court system, both in relation to substantive disputes and urgent interlocutory matters. June has significant experience in acting for both private and listed companies in the financial services, pharmaceutical and healthcare, and food and beverage sectors.

June recently returned to New Zealand, having practiced at a magic circle firm in London for several years, and at another top tier New Zealand law firm prior to that. During her time in London, June regularly advised leading private equity houses and FTSE100 companies on employment law and regulatory issues.

June Hardacre

Senior Associate


Employment
Auckland

P: +64 9 353 9723
M: +64 21 105 9616
Email

Related Articles