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Inside The Hunt For Rawshark - The Hager Raid Court File

By Alastair Thompson

Image by Lyndon Hood

Scoop Independent News has secured access to the court file for the Hager Rawshark Raid Case and today publishes partially redacted versions an initial group of documents released by the High Court.

A judgement is thought to be imminent on the legality of the raid conducted by Police in the immediate aftermath of the 2014 General Election on the house of investigative journalist Nicky Hager, author of the book Dirty Politics.

During the raid - which took place on October 2nd, 13 days after the election - a number of documents were taken by the police, including physical records, computers, CDs, phones and USB drives. Controversially the police also interpreted their warrant to give them access to any data held on the internet in any accounts that they could identify whilst at Nicky Hager's house, thereby significantly widening the scope of the search.

Following the raid the police sealed the files pending the decision of the judge in this proceeding on the legality of the search.

At the time of the raid Nicky Hager was working on a series of articles based on documents sourced from NSA whistleblower Edward Snowden. Intercept editor and Citizen Four documentary maker Glenn Greenwald wrote at the time of the raid:

Whether or not Hager’s work with The Intercept may have partially motivated the raid, the situation underscores the dangers of using invasive law enforcement tactics against reporters—they impede the reporting process, render source relationships very difficult to protect, and offer the very authorities that reporters are attempting to hold accountable a window into their ongoing reporting. (The Intercept‘s collaboration with Hager will proceed.)

The judgement of Justice Dennis Clifford expected shortly will clarify the limits of "freedom of expression" protection that journalists can expect when dealing with confidential sources in New Zealand, and particularly when dealing with information obtained by computer hackers about matters of high public interest.

It will also clarify whether police guidelines for how to execute search warrants on investigative journalists were followed and whether they are adequate.

Gaining Access To The Court File

Access to the court file has been granted, against the wishes of the Crown, following an application by Scoop.co.nz to the court by way of a minute from Justice Clifford on 8 October 2015.

Proceedings in the High Court began on July 13th and lasted three days. Scoop covered the proceedings. I reported the opening of the case at the time and Overland NZ Editor Giovanni Tiso covered the remainder of the proceedings, first via live tweets, and later on his blog Bat Bean Beam.

The court proceedings were relatively brief - in large part because the vast bulk of the recitation of facts in the case was not disputed by the crown. However, because these facts were not in dispute, much of the detail of the Hager Raid was never discussed in open court.

On the opening day of the case Scoop made an application to access the court file for the case. On September the 17th Justice Clifford responded to our application by way of a court minute:

"The parties take different views [on granting access to the file]. Mr Hager accepts the reasonableness of the respondent’s request that documents which were provided to the Court only on a confidential basis not be provided to scoop. He also asks that certain documents which contain information personal to him be withheld. The respondents seek the withholding of all of the affidavit evidence, save for the affidavits of Messrs Ellis, Fisher, Edwards and Hersh (who filed affidavits in support of Mr Hager), and a considerable amount of other material. The respondents’ basic submission is that Scoop should be able to understand the basis of the claim and the arguments on both sides by considering the statements of claim and statements of defence and the submissions made."

Scoop replied in a letter to the judge on 21st September which contained the following submissions:

"I would observe that there are aspects of this case which I think merit the court imposing a particularly high standard of disclosure and transparency. Namely this is a case which:

1. concerned the police response to a piece of very significant journalism which was published in the lead up to a General Election which appeared to disclose abuses of great power;

2. concerned a police raid on the house of a renowned journalist, the warrant for which was issued just 10 days after this General Election and a raid which took place just two weeks after this General Election;

(note: these two considerations make the actions of police particularly important from a public interest case. This is not any old search case - it is a search case of constitutional significance relating to protection of BORA rights to freedom of expression and the ability of media to inform electors so they are able to exercise their responsibilities to vote as an informed citizenry.)

3. is likely to result in a lasting judicial precedent around the issue of journalist source protection and whistleblowing which will guide the policy of Police in relation to their responsibility to protect journalistic privilege;

4. involved the parties to the proceedings agreeing to a truncated court procedure which meant that in large part the evidence was not disclosed in open court and exists almost in its entirety only in the written affidavits;

It is my submission to the court then that in this case it is even more important than usual for "justice to be seen to be done". For that to happen the actual events leading up to and which took place in the raid ought to be opened to the full sunshine of public transparency within whatever limits are necessary to maintain public order and confidence in the justice system.

It is important in Scoop's submission that the police, the public and the media all understand what happened in this case so that we can all well understand what the law around protection of journalistic privilege is. This will enable us all to understand the full importance of a case which will likely become the leading authority in this very important and seldom litigated area of public law."

Justice Clifford judge's minute concluded that the files released today should be released, and that unless the Crown provided compelling reasons by 23rd October 2015 as to why they should not be released, that Scoop should be provided with access to the affidavit evidence of the crown.

Scoop wrote today to the High Court to ascertain whether the Crown had filed objections to the release of this evidence. At the time of publication no response had been received.

The files which have been released so far are linked below. They are all in PDF format. Some minor redactions have been made.

• First and Second Respondents Submissions Redacted


• Second Amended Statement of Defence Redacted


• Affidavit of Seymour Hersh sworn


• Affidavit of David Fisher sworn with exhibits


• Affidavit of Bryce David Edwards


• Second affidavit of David Fisher affirmed


• Written submissions for the applicant Redacted


• Applicants chronology Redacted


• Joint statement of issues signed


• Ellis affidavit

Dirty Politics author Nicky Hager at his book launch

**************

High Court Minute of Justice Clifford

IN THE HIGH COURT OF NEW ZEALAND
WELLINGTON REGISTRY
CIV-2014-485-11344

UNDER
The Judicature Amendment Act 1972, Part 30 of the High Court Rules, the Bill of Rights Act 1990, and the Search and Surveillance Act 2012

IN THE MATTER OF
an application for judicial review

IN THE MATTER OF
a search warrant issued by Judge I M Malosi of the Manukau District Court on 30 September 2014

BETWEEN
N A HAGER
Applicant

AND
HER MAJESTY'S ATTORNEY-GENERAL
First Respondent
THE NEW ZEALAND POLICE
Second Respondent
THE MANUKAU DISTRICT COURT
Third Respondent

On the papers
Counsel:
J G Miles QC, F E Geiringer, S Price for Applicant
B J Horsley and K Laurenson for First and Second Respondents
A Thompson for Scoop Media in Person

Minute:
8 October 2015

MINUTE OF CLIFFORD J
(APPLICATION TO ACCESS COURT FILE)

Scoop Media – application

[1] Scoop Media has applied to access the Court file.

[2] I gave the parties notice of Scoop’s request, and they have objected to certain documents being provided.

The parties - objections

[3] Mr Hager has identified particular documents that he seeks to withhold. These are set out in Appendix 1 to this Minute (the Hager documents).

[4] The first and second respondents have said they do not oppose the application “as it relates to the file in general”, but oppose the application to search the following material:

2.1 the affidavit evidence, save for the affidavits of Mr Ellis, Mr Fisher, Mr Edwards, and Mr Hersh;

2.2 the key evidence bundle;

2.3 the CDs of discovery documents provided to the Court by the Crown containing both the redacted documents given to the applicant and unredacted versions provided to the Court only;

2.4 the first and second respondents’ memorandum of 10 February 2015 together with the appendix that was provided to the Court only on a confidential basis;

2.5 the two memoranda provided to the Court only on a confidential basis on 24 June and 1 July 2015;

2.6 the first and second respondents’ memorandum of 24 June 2015 provided to the Court and parties; and

2.7 the first and second respondents’ memorandum of 1 July 2015 relating to confidential text messages provided to the Court and parties.

[5] The respondents’ more general proposition was that Scoop should be able to understand the basis of the claim and the argument on both sides by considering the statements of claim and defence and the submissions made.

Scoop - response

[6] When I received those responses I asked Mr Thompson, for Scoop Media, to confirm whether Scoop Media still wished to access the Court file, and advised Mr Thompson of the general nature of those objections. Mr Thompson responded in a letter dated Monday 21 September. He said, quite reasonably, that without knowing the detail of the documents in respect of which the respondents opposed Scoop having access, it was difficult for Scoop to respond in any meaningful way. He noted, moreover, that Scoop had not, as yet, had access to the pleadings and written submissions and that, as was the case, during the hearing the parties had in their submissions referred to a range of the affidavit evidence without the detail of that evidence being disclosed.

[7] In those circumstances, Mr Thompson suggested that Scoop be provided immediately with access to the statements of claim and defence, and the written opening and closing statements, and that, subject to further consideration by me, Scoop also be provided with:

- Access to the full affidavits of the principle applicant and respondent witnesses whose testimony is mentioned in the opening and closing submissions and which plays a significant part in the Statement of Claim or Statement of Defence;

- Access to the transcripts, emails and timelines produced to the court and mentioned in the opening and closing statements which assisted the Court to understand the context of what occurred in this case in a narrative sense;

- Access to a list of all the affidavits which are contained in the court file so that specific application can be made to portions of the file which are withheld if they are considered important and are referenced in parts of the evidence which is released.

Consideration of application and objections

[8] Access to court documents is dealt with in Subpart 2 of Part 3 of the High Court Rules HR3.5 –3.16.

[9] For the purposes of those Rules, the terms the “court file”, “document” and the “formal court record” are defined as follows:

court file means a collection of documents in the custody or control of the court that relate to a proceeding (including any interlocutory application associated with the proceeding)

document—

(a) means any written material in the custody or control of the court that relates to a proceeding (including any interlocutory application

associated with the proceeding), whether or not kept on a court file; and

(b) includes documentary exhibits, video recordings, records in electronic form, films, photographs, and images in electronic form; but

(c) excludes—

(i) notes made by or for a Judge for his or her personal use; and

(ii) any material that relates to the administration of the court

formal court record means any of the following kept in a registry of the court:

(a) a register or index:

(b) any published list that gives notice of a hearing:

(c) a document that—

(i) may be accessed under an enactment other than these rules; or

(ii) constitutes notice of its contents to the public:

(d) a judgment, order, or minute of the court, including any record of the reasons given by the Judge:

(e) the rolls of barristers and solicitors kept under section 56 of the Lawyers and Conveyancers Act 2006 or any former corresponding enactment.

[10] High Court Rule 3.7 provides a general right of access to the formal court record.

[11] The commentary in McGechan on Procedure reads: [Andrew Beck and others McGechan on Procedure (looseleaf ed, Brookers) at [HCR3.7]]

General right of access

The rights of the public to access Court documents are very limited except during the hearing process: see commentary to r 3.9. Access is restricted to the “formal court record” and applications for grants of administration and recalls of such grants. The formal court record is defined in r 3.5, and generally excludes all documents filed by the parties to a proceeding.

[12] High Court Rule 3.9 provides the public (any person) with broader rights of access to documents during the substantive hearing stage of a proceedings. That rule applies during the hearing of the proceeding and until the close of the twentieth working day after the Court has given the final judgment on the proceedings. That rule is, therefore, currently applicable.

[13] High Court Rule 3.9(2) and following, provide:

(2) During the period to which this rule applies, any person may access any of the following documents relating to the proceeding:

(a) any pleading, reference, notice, or application filed in the court:

(b) affidavits, depositions, or other written statements admitted into evidence for the purposes of the hearing:

(c) documents admitted into evidence for the purposes of the hearing:

(d) if any evidence given orally at the hearing has been transcribed, a transcript of that evidence.

(3) Despite subclause (2), a Judge may, on his or her initiative or on request, direct that any document, or part of a document, relating to the proceeding not be accessed without the permission of a Judge.

(4) A request for access to a document under this rule is made informally to the Registrar by letter that—

(a) identifies the requested document; and

(b) gives the reasons for the request.

(5) The following provisions apply when a request for access to a document is made under subclause (4):

(a) the Registrar must promptly give the parties or their counsel a copy of the request:

(b) a party who wishes to object must, before the relevant deadline (within the meaning of rule 3.10), give written notice of the objection to the Registrar, to the person who made the request, and to the other parties or their counsel:

(c) on receipt of an objection, the Registrar must promptly refer the objection and the request to the Judge for determination: …

[14] The commentary in McGechan on Procedure reads: [McGechan on Procedure, above n 1, at [HR3.9.03]]

HR3.9.03 Objections by parties

Unlike the previous rules, r 3.9 now specifically requires the Registrar to give notice to parties of a request for access to Court documents during the substantive hearing stage. Any objection by a party has to be made by the deadline specified in r 3.9, failing which the Registrar is generally required to make the document available.

The right of objection needs to be seen in the light of the open justice approach followed by the Courts. A bald objection to access is unlikely to be given any weight by the Court unless there is a good reason to protect the document from publication. A party can therefore be expected to justify its objection on appropriate grounds, such as highly sensitive personal information or confidential data, that should be protected from competitors. Even in such cases, it is likely that the Court would order the provision of a redacted version of the document rather than restricting disclosure entirely.

[15] The memoranda referred to at paragraphs 2.3, 2.4, 2.7 of the respondent’s objection are, in my view, documents where it is appropriate that I direct they not be accessed. They were provided to assist the Court to make decisions regarding claims for confidentiality. Similarly, I do not think it is appropriate for the CD to be provided given, in particular, that it contains unredacted documents. I have the same view as regards any similar memoranda filed on behalf of Mr Hager, some or parts of which were referred to at the end of Appendix 1 of his memorandum. Again, at least as I understand matters, those were all memoranda addressed to and dealt with by Dobson J when he was conducting the separate exercise of considering and determining the scope of discovery. Just as Brown J, who was originally intended to hear this application, was not involved in that exercise, neither was I. I am, accordingly, not well placed to consider those documents. Indeed, my consideration of them would be inappropriate given, again as I understand matters, the basis upon which Dobson J carried out that separate exercise.

[16] The real issue here is the respondent’s objection to Scoop having access to the affidavit evidence, including the key evidence bundle, other than the specified affidavits.

[17] Discovery in this application was extensive and, as between the parties, controversial. Ultimately a large number of documents were discovered, and copies of all discovered documents were filed as exhibits to a series of affidavits sworn by a legal executive, Ms Linda Cheesman.

[18] For the purposes of the hearing, the parties produced four “key evidence bundles”. Not all, but a reasonable number of, those documents were referred to during the hearing.

[19] The respondents’ objection to Scoop having access to the affidavit evidence goes, in my view, too far. As a matter of principle, and bearing in mind principles of open justice, I am not persuaded at this point that the blanket exclusion from access that the respondents seek is appropriate.

[20] Rather, I think – much in line with Mr Thompson’s proposition, it would be reasonable for Scoop to have access to that part of the discovered material that is contained in the key evidence bundles. Having said that, as a matter of principle I consider there would be two reasons to decline such access:

(a) First, it was agreed at the hearing that names of individuals referred to in those documents would not be disclosed, save for the names of Mr Hager, Mr Slater and the police officers involved. I therefore consider that those names should be redacted from the copies of documents that Scoop may have access to.

(b) Secondly, I acknowledge there is an ongoing police investigation (at least in terms of the position when the respondents objected to Scoop’s application). I would consider particularised objections to access from the respondents by reference to the public interest in any such investigation.

[21] On that basis, Scoop may, subject to any redaction required as discussed at [25] below, now have access to the pleadings, the written submissions, and the chronology and summary of issues, together with the affidavits of Messrs Ellis, Fisher, Edwards and Hersh.

[22] The respondents are, within two weeks of today’s date, to particularise any documents contained in the key evidence bundles with respect to which they wish to maintain an objection, noting the terms of this Minute.

[23] The Hager documents are also to be redacted from the key evidence bundles, including to the extent that they appear (and I have not gone into the detail of this) in the affidavits of Messrs Ellis, Fisher, Edwards and Hersh.

[24] To the extent that the respondents do object to access to particular documents, I will – when I receive that objection – determine how to resolve it.

[25] In terms of practicalities, the parties should cooperate to advise the Court promptly whether, in terms of the withholding of names, any redactions are required from the pleadings and other materials that Scoop may now have access to. Counsel for Mr Hager should also, to the extent necessary, produce redacted versions of the affidavits of Messrs Ellis, Fisher, Edwards and Hersh to deal with any “Hager Documents”. The question of redactions from other affidavits can be addressed similarly when any particularised objections by the respondents to access have been received and determined.

“Clifford J”

Solicitors:
Bennion Law, Wellington for Applicant
Crown Law, Wellington for First and Second Respondents

Appendix 1
Documents Mr Hager seeks to withhold

With respect to the exhibits to Linda Marie Cheesman’s affidavits including to the extent that the same documents have been reproduced in Key Evidence Bundle volume 4, Mr Hager objects to the release of the following pages or passages:

• from LMH-1 – pp 42-44, 118, 130, 141-156, 168-173, and 181-188, his daughter’s name, date of birth, and phone number from p 85, and his daughter’s password on p 96;

• from LMH-2 – pp 242, 245, 248, and 251-319;

• from LMH-5 – pp 712-771 (including pp 712A-712J in the KEB v 4);

• from LMH-7 – pp 1407-1410;

• from LMH-8 – pp 1562-1569, 1575, and 1585, his daughter’s name, date of birth, and phone number from p 1549, his daughter’s password from p 1560, and the email addresses on pp 1586-1587;

• from LMH-9 – pp 1834-1835, his daughter’s name, date of birth, and phone number from p 1837, his daughter’s password from p 1848;

• from LMH-11 – pp 1864, 1866, and 2025;

• from LMH-13 – pp 2212, and the email addresses on pp 2213-2214;

• from LMH-14 – pp 2254, 2307, 2351, 2368-2370, and 2379, the account numbers from p 2314, the account numbers and balances from p 2355, email addresses on pp 2380-2381, and the five numbered facts on p 2420;

• from LMH-15 – the five numbered facts on p 2422, 1.1-1.26, 2 and 3 from pp 2460-2461, and paragraphs 2 and 4 of p 2465; and

• from LMH-16 – pp 2480, 2490, and 2494, the five numbered facts and the .onion URL on p 2476, and the .onion URL from p 2477.

ENDS

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