Judge orders handover of Nicky Hager raid documents
The police have been ordered to hand over documents relating to the decision to search the Wellington home of Dirty Politics author Nicky Hager.
Hager is challenging the police decision to search his home on October 2 and seize information, much of it stored electronically.
The information seized has been boxed up and is being held at the High Court in Auckland pending Hager's challenge to the search, and agreement on an independent way to sort through the material to identify information relevant to the reasons for the search.
Police were acting on a complaint from blogger Cameron Slater whose hacked emails were used as source material for Dirty Politics. Police want to know the identity of the hacker known as Rawshark who allegedly leaked the emails to Hager.
In the lead-up to Hager's challenge to the police decision to search his property, due to be heard in the High Court in Wellington in March, Hager's lawyers asked the court to order police to disclose documents about the process they followed.
Justice Robert Dobson has issued his decision saying that police must hand over the information, with some limits.
Slater's complaint that sparked the investigation should be disclosed to Hager, or at least any parts of it that talk about other possible ways to identify the hacker, or were relevant to the police decision in relation to getting the search warrant and conducting the search.
But some of the documents must remain confidential to Hager's lawyers and cannot be shown to Hager himself.
The judge said it was a "not unusual" condition imposed in civil cases and the lawyers could ask the court to vary the order if it was impeding them. It was also possible for police to delete parts of the documents although the judge said he thought that should be unnecessary and police would have to give reasons for any deletions.
The application that went to a District Court judge to issue the warrant has already been handed to the Hager team, with deletions. The judge says those deletions should be reviewed to make sure they were no wider than necessary.
Hager had also wanted a copy of the seized material returned to him but did not want the electronic cloning done at the Police Electronic Crime Laboratory because he said his files contained allegations of police corruption. Police objected to Hager's proposal for the files to be copied by a private company Hager nominated.
The judge offered a compromise that the files could be copied at the police laboratory on the basis of an undertaking to the court and the parties that the information would be cloned without access to the material contained in the files. Hager is yet to say whether he accepts the terms for cloning the information.
Hager's lawyer said police should not have been looking for the information from him at all, on the grounds a legally enshrined journalistic privilege was likely to cover any of the documents Hager had about the topic. The privilege should have been considered as part of the police decision to apply for a warrant.
The police say later law changes limited journalistic privilege and they are likely to argue when the case goes to a full hearing that they did not need to consider it leading up to asking for a search warrant.
Police said their actions leading up to the warrant being issued were not able to be reviewed by the court. If the information supporting an application for a warrant was inadequate police would risk being refused the warrant.
The judge said police might be right but Hager should have the information so he can prepare for his case.
But he also recognised the public interest in not compromising the confidentiality of the Slater investigation and police investigative techniques generally.
- The Dominion Post