Hager exploring options as Westpac privacy breach becomes public
By Pattrick Smellie
Oct. 27 (BusinessDesk) - Nicky Hager , the author of the 'Dirty Politics' book, says he "fully intends to explore all options open to him" now that Westpac Banking Corp's release of his banking records to the police without a court order has become public.
Political activist and journalist Hager said in a statement through lawyer Felix Geiringer that he was "very concerned" by Westpac's disclosure, which came to light with the release of court documents relating to his (Hager's) claim for judicial review of the process leading to the police searching his home in October 2014 and compensation for legal rights he claims were breached.
The court documents, obtained from the Wellington High Court by the Scoop website and publicised by the New Zealand Herald last weekend, show that while Air New Zealand, Jetstar, Spark, Trade Me and Vodafone instructed the police they would only comply with requests for information about Hager's travel, telecommunications and other activities if a court order was produced, Westpac released "almost 10 months of transactions from Mr Hager's three accounts" without a court order.
Police were attempting to learn anything of the computer hacker nicknamed "Rawshark" who stole email and social media conversation threads from the WhaleOil blog site, run by right-wing political activist and journalist Cameron Slater.
Westpac told BusinessDesk in a statement it had followed internal procedures allowing personal banking details to be disclosed to the police.
"Our terms and conditions allow us to disclose information to agencies where we consider it will assist them with the investigation of criminal offences," said spokesman Chris Mirams. "This is consistent with our privacy and confidentiality obligations."
In his statement on Hager's behalf, Geiringer said comment was difficult because "part of his claim that deals with the legality of these police information requests was deferred during the first hearing and has not yet been argued."
Hager was only aware of Westpac's actions through the court discovery process, meaning he could not discuss them publicly or raise the alleged breaches of privacy with either Westpac or the Privacy Commissioner.
The National Business Review reported Privacy Commissioner John Edwards as saying: “Mr Hager could make a complaint to my office, and then I would need to look into exactly what happened and give Westpac an opportunity to explain what happened."
Edwards is travelling and his office would provide no further comment specific to the case. The Privacy Act does include exceptions for the release of personal information where there are "reasonable grounds" for believing it would assist "maintenance of the law", although the Privacy Commissioner launched an inquiry earlier this year into how widespread the use of that exception may have become by law enforcement agencies to get around the need to obtain court orders ahead of a search.
The police application for Hager's banking details from December 2013 to October 2014 cited "suspected criminal offending, namely fraud, dishonest access of a computer system".
Geiringer also said that Hager's attempts to obtain police files under the Official Information and Privacy Act had so far failed.
"Indeed, the police have refused even to acknowledge the existence of correspondence with Westpac under those Acts". That had sparked a complaint to the Privacy Commissioner and the Office of the Ombudsman.
"Now that the fact of this breach of privacy has been made public, Mr Hager intends to seek a full and frank disclosure of the extent of the breach by Westpac," Geiringer said.
Hager would consider his options on receiving a response from Westpac, and would "explore all options open to him" with respect to his claim against the police under the Bill of Rights Act. He still banks with Westpac.
The Bankers Association and Consumer NZ, a consumer rights body, did not immediately respond to requests for comment. The Banking Ombudsman, Nicola Sladden, said in an emailed statement: “We have not had any complaints about banks making personal banking records available to police without court orders.
"The Banking Ombudsman considers complaints about bank breaches of their duty of confidence and we can also look at allegations of a breach of privacy. In such cases we may consult with the Office of the Privacy Commissioner, and may refer the complaint to it if we consider it would be better dealt with there.”