Dotcom Affidavits: GCSB, Police And Knowledge Of Illegal Surveillance
Documents regarding the GCSB and police's surveillance of Kim Dotcom and others, and their knowledge that Dotcom was a NZ resident – meaning that the surveillance was illegal.
The include the September court affidavit from GCSB, the affidavit of Grant Wormald from OFCANZ (Organised and Financial Crime Agency New Zealand) and emails that were attached to Wormald’s affidavit. These documents were obtain by the Labour Party by making an application to the Court.
They show the agencies discussed of the residency of Dotcom and Bram van der Kolk and their families in February 2012. The affair was officially made public in September, seven months later.
7. Prior to the Bureau agreeing to undertake interception operations, I was informed by OFCANZ that all persons listed in paragraph 5 were foreign persons (as the expression “foreign person” ‘is defined in section 4 of the G CSB Act).
8. Accordingly, and in reliance on this information (which throughout the period during which our interception operations were conducted I believed to be accurate), communications from and between those individuals were intercepted...
15. This advice subsequently proved, however, to be incorrect. In response to a query made by a GCSB colleague at my direction to OFCANZ on 20 February 2012, after interception operations had been completed, and I had become aware of media reports that Mr Dotcom was aNew Zealand resident, I learned on 22 February that Immigration NZ had advised OFCANZ (who had not passed on the information to GCSB), that Mr Dotcorn and his family and Mr van der Kolk and his family were in fact persons holding residence class visas under the Immigration Act 2009.
9. On 9 December 2011 I forwarded an Information Request to Immigiration New Zeamd requesting the Immigration files on the subjects of the investigation, including Mr Dotcom and Mr Van Der Kolk...
10. On the afternoon of the 16 December 2011 I received from Immigration New Zealand an email with travel details of the named suspects to and from New Zealand...
11. Referring to these documents the top one is headed VESTOR/Kim aka DOTCOM/Kim. His last two arrivals into New Zealand on 15 December 2010 and 26 December 2011 identify Mr Dotcom as 'Resident’ in the column marked 'Visa'.
12. Mr van der Ko1k's latest arrival on 17 April 2011 identifies him as a ‘Visitor' the 'Visa' column.
13. The immigration file for Bram van der Kolk was received by Police on 23 December 2011, and the file for Kim Dotcom was received on 11 January 2012. The files confirmed that Mr van der Kolk was granted a residence visa on 2 December 2012, and Mr Dotcom had been granted residence on 18 November 2010...
Meeting of 14 December 2011: Second Phase
30. At the conclusion of the main meeting Detective Sergeant McMorran showed all the attendees out of the room with the exception of the two GCSB representatives. When everyone but thc two GCSB representatives had left we had a discussion about the general viability of any GCSB assistance in providing intelligence.
31. I made no notes of this conversation.
32. I do not recall either of the GCSB staff making any notes at the time.
37. Thereafter, it is my recollection that the conversation turned to the issue of who could be intercepted. There was general consensus that all of the parties under discussion were not New Zealand citizens and were indeed citizens of other countries.
38. I believe I made a comment that I did not think that it was possible for the GCSB 'to intercept either Mr Dotcorn or Mr Van der Kolk on the basis that they were living in New Zealand.
39. I recall one of the GCSB representatives making comments about the application of their intercept powers and how they were able to intercept provided the persons involved were not New Zealand Citizens or permanent residents of New Zealand.
40. I reiterated that we were sure that Mr Dotcom and Mr Van der Kolk were not citizens but that we could not advise with any certainty what type of 'residency' they held.
41. I recall comments by GCSB2 who explained that different types of residency existed and this affected what they could do regarding people living in New Zealand.
42. I conveyed to the two GCSB members tl at both Mr Dotcorn and Mr van der Kollr were residing in New Zealand and were able to come and go, so they must have a form of residency.
43. I made the offer that if required I would be happy to be a go between for GCSB for enquires with New Zealand Immigration for the purpose of clarifying this point if required. Following a brief discussion, this did not seem to be necessary at the time.
The Request for Information (RFI)
51. An RFI is not an authorisation for GCSB to intercept anyone. The RFI sets out what the requesting agency, in the case OFCANZ, would like GCSB to consider doing for them.
52. In my [19 December 2011] telephone call with Detective Sergeant McMorrnn, we discussed what the content should be. I confirmed my intention that the focus be narrow; seeking only information that assists in establishing if the party is to occur, details of any of those sought by the FBI who could be travelling and any intelligence relevant to safety...
55. At that point I had not been told by GCSB one way or the other who they may or may not be able to intercept at that time. It was my understanding that those decisions could not be made and certainly not formally confirmed within GCSB without the submission ofthe RFI.
57. Paragraph 4 records who OFCANZ specifically requested GCSB to consider Inuiries against. Mr Dotcom and Mr van der Kolk are named in this paragraph. The purpose of the document was to repeat in a formal manner the request we had made earlier at our meeting on the 14 Decmber 2011.
58. To the best of my recollection, I did not see a copy of the RFI s bmitted to GCSB until late February 2012, after some concern had been raise I about the legitimacy of the interception of Mr Dotcom and Van der Kolk by GCSB1...
February Debrief with GCSB
86. On 16 February 2012 I and several other OFCANZ staff attended a debrief at GCSB in Wellington with members of their staff.
87. Following the meeting] had a brief conversation with GCSBI. GCSB1 raised a possible issue surrounding the fact that Mr Dotcom and Mr van der Kolk had been intercepted. It appeared to GCSB that the interception may not have been lawful because of their residency status.
88. I was surprised this matter had come up at this point given we were some three weeks after the termination and after interceptions had ended.
89. GCSB1 and I agreed that we needed to deal with the matter promptly. GCSB1 determined to make further enquires to get to the bottom of it without delay. I offered my resources in making any enquires necessary to assist...
91. On 27 February 2012 GCSB1 reported by email that neither Mr Dotcorn nor Mr Van Der Kolk had been unlawfully intercepted.
[9 December 2011 Police request to DoL for immigration information on suveillance subjects attached to Wormald affidavit above.]
22 Feb Email from OFCANZ:
With respect to Op DEBUT, it is becoming apparent that there are some serious issues that might need to be addressed.
We have some xhecks under way with Immigration to satisfy your request regarding residency status and dates for the DEBUT targets. The likelihood is that these checks will show that all three have NZ residency status.
There are some important (but subsequently incorrect) assumptions and apprehensions from our end that I wish to spell out...
22 Feb from OFCANZ:
That certainly does help to put my mind at ease. It was not so much a witch-hunt we were concerned about – the process is the process and we will accommodate whatever form that takes. We just wanted you to be assured that we had been ethical and proper in our dealings re this whole RFI and not a bunch of clowns walking roughshod over the law and sound practice.
27 Feb from GCSB:
Thought you'd like to know that the paper that I submitted to our Lawyers re Debut met their need. They agreed that as the families only had Residence there was no inadvertent targeting of NZSID7 protected persons - who are only protected when they have Permanent Residency So all done and dusted.
Thanks for your help in pulling the facts together. Bring on the next case!
28 Feb from GCSB:
[GCSB redaction] wrote up a brief document, to catalogue the nationality issues encountered and submitted it to [GCSB redaction]. [GCSB redaction] was pretty relaxed, and has stored this away in case we need to give an account to the IG. Absolutely no further action required... People here have been very relaxed about it all.
28 Feb from OFCANZ:
... talked to [police analyst] and he said [GCSB redaction] happy, so it turned out ok. More luck than good management, but all good all the same.