Tuesday, October 02, 2018

Vexing bullshit

That's the only way to see the High Court's decision The Attorney-General v Dotcom, released today. In the context of ongoing litigation, Kim Dotcom had filed urgent Privacy Act requests to multiple agencies requesting everything they held about him. The agencies had responded by transferring the requests to the Attourny-General, his opponent in the litigation, who then refused them as "vexatious". The Human Rights Review Tribunal had previously held that both the transfer and refusal unlawful: that the transfer to an agency which did not in fact hold the information being sought was contrary to the Act, and that the bar to vexatiousness being very high - previous rulings had said that it required a request to be such that no-one could make it in good faith - the refusal was also unlawful. The High Court has refused this. Its reason? Because Dotcom had requested information in the context of litigation, and he had had the temerity to demand it urgently.

This, simply speaking, is bullshit. Information held by an agency about you does not become "more closely connected" with another agency simply because you are involved in litigation with the government. And requesting urgency does not make a request inherently vexatious. To the contrary, under the traditional legal interpretation, being involved in litigation with an agency is a good reason to seek information held by that agency, and a strong indication that a request is not vexatious. Insofar as the request for urgent treatment of a request is seen as unreasonable, the appropriate action for an agency to take is simply to process it in normal timeframes - not refuse it.

The High Court has turned the law on its head. It has given licence to government agencies to play that games with each other and transfer requests to agencies which do not hold the information sought, while dramatically expanding the definition of vexatious to allow any request from someone the government labels an "enemy" to be refused. And this affects more than just the Privacy Act, because the Official Information Act shares these provisions. Secretive government agencies will use this decision to refuse requests.

With this decision, a subservient and authoritarian High Court has undermined official information rights for us all. We can only hope that it will be appealed and overturned, or the freedom of information and privacy regimes are in real trouble.