A tourist visited New Zealand on a holiday. During his holiday, he filed a police report alleging he had been robbed.
During the investigation, a constable interviewed the complainant. This interview was recorded with the complainant’s consent. As a result of that interview and other inquiries, Police determined that the complainant had not actually been robbed, but rather had made a false report in order to file an insurance claim to pay for his holiday.
Several months later, the complainant asked Police for a DVD copy of the interview recording. They declined to give him a DVD, and instead offered a transcript of the interview.
This was not suitable to the complainant, so he contacted our office.
Principle 6 of the Privacy Act gives people the right to access information agencies hold about them – such as the DVD Police held of the interview. The Act also gives individuals the right to choose the form in which they receive information agencies hold about them where possible.
Agencies can choose not to share the information requested, or to share it in a different form, but they must give a reason for doing so. Police cited two components of the Privacy Act as grounds for their decision to release a transcript rather than the DVD itself: section 42(2)(b) and section 42(2)(c).
Section 42(2)(b) allows agencies to give information in a different form than requested if giving the information in its requested form would ‘be contrary to any legal duty of the agency in respect of the document’.
At the end of the interview, the complainant told the constable that he intended to put the video on YouTube. Police argued that enabling him to do so by releasing the DVD would result in ridicule and/or abuse towards the constable, which Police saw as a breach of its duty to be a good employer.
We did not agree with this reasoning because section 42(2)(b) refers to legal duties over documents, not individuals. While Police cited a duty to be a good employer, the Act only refers to statutes and common law that prevent an agency from releasing documents. For example, some agencies are legally prohibited from sharing secret documents.
Section 42(2)(c) allows agencies to give information in a different form than requested if releasing the information in the requested form would prejudice another person’s privacy. Police argued that the recording contained the constable’s name, likeness and voice, and that releasing it would breach his right to privacy.
We did not agree with this reasoning. The constable’s name, voice and likeness were not new information to the complainant. Since the complainant already knew who the constable was, and this information was in the transcript, further confirmation could not prejudice the constable’s privacy. To breach the constable’s privacy, there would have to have been a release of information the requester didn’t already know.
Complainants don’t need to explain themselves
The fact that the complainant intended releasing the video on YouTube was not relevant. The Privacy Act gives individuals the right to access any information agencies hold about them. It does not require them to explain why they need it; rather, it requires agencies to explain why they cannot have it (if this is the case). In this case, we did not agree with Police’s reasoning about why the complainant could not have the information in the form he requested.
Compromise and resolution
As a compromise, Police released the DVD with the constable’s face pixelated and voice distorted. This protected the constable’s dignity and reputation while also fulfilling Police obligations under the Privacy Act.
Access request – DVD of recorded interview – Police – form of information to be provided – Privacy Act 1993; s42, principle 6