1 Feb 2006, 09:00

A small group of local residents were opposed to a property development. They protested peacefully on the street, distributed pamphlets and approached potential purchasers. The property development company hired a security guard to film them.

When the complainants became aware that they were being filmed they asked for a copy of the footage from the security guard. However, the security guard did not provide the footage, and did not pass the request on to the company. When the company became aware of the request, some footage was provided, but the complainants believed that it was incomplete.

The residents complained to me about being filmed and the time taken to respond to their request. They also said they had not received a complete copy of the video footage.

Principle 1

Principle 1 of the Privacy Act states that an agency must not collect personal information unless it is for a lawful purpose connected with a function or activity of the agency. The collection must also be necessary for that purpose.

In this case the company believed that the collection was necessary to protect its business and its assets. It described a range of incidents that included vandalism, verbal abuse of its personnel, defamation and a series of publicity stunts which led them to hire the security guard.

The filming all occurred in a public place.

The company believed that the complainants were among those who were unlawfully interfering with its business. In order to identify those involved and to take legal action against them it considered it needed to film the residents. This is because it was necessary to identify the individuals responsible for the incidents in an independent and objective way.

I was satisfied that the collection was connected to the lawful purpose of protecting the company's property and commercial interests. There was no evidence that the complainants were involved in any activities such as vandalism. However, they did hand out pamphlets and approach potential purchasers. The complainants had been presented with solicitors' letters that made it clear the company was contemplating legal action against them. There was sufficient connection to the company's business activities so that I was satisfied the collection was necessary to protect its business. I found no breach of principle 1.

Information Privacy Principle 6

Under principle 6 individuals have a right to request access to personal information held about them by an agency.

An agency cannot refuse a principle 6 request unless it has a proper basis to do so under sections 27 – 29 of the Act.

The complainants said that not all the footage was released to them. They gave examples of incidents that they believed had been filmed. Upon investigation, however, it transpired that images were not always recorded, although the security guard was holding the camera. I found that the company had a proper basis to refuse access to footage of those incidents under section 29(2)(b) as the information did not exist.

Some parts of the video recording were withheld on the grounds that other individuals were identifiable in the images. This included members of the public and prospective buyers of the property. The complainants were provided with an edited version of the video footage, so that these other people could not be identified. I accepted that, in these circumstances, the company had a proper basis to edit the footage, under section 29(1)(a).

Section 40

Under section 40 an agency is required to make a decision about whether to comply with a principle 6 request and let the requester know of that decision within 20 working days. It was clear that the company did not respond to the request within the time limit. This was caused by the failure of the security guard to pass on the request to the company. However, the company was responsible for the actions of the security guard, its agent, under section 126(2).

A failure to comply with the time limits in the Act is a deemed refusal to provide information (section 66(3)). On these facts there was no proper basis to refuse the request in its entirety. Therefore there was an interference with the complainants' privacy under section 66(2) of the Privacy Act.

I issued my final opinion and my Office attempted to facilitate settlement. However, this was not achieved.

Where I have found an interference with privacy and the parties have not been able to resolve the matter, I consider whether to refer the complaint to the Director of Human Rights Proceedings.

I was sympathetic to the residents, who had found themselves in an unpleasant situation. However, since there was no breach of the collection principles in this instance, there seemed little point in approaching the Director about the breach of section 40. I therefore decided not to refer the matter. I notified the parties of my decision and closed the file.

September 2006

Indexing terms: Collection of personal information – Property development company – Video recording of protesters – Community dispute – Lawful protection of business and assets – Information privacy principle 1

Access to personal information – Property development company – Agent and principal – Refusal – Deemed refusal – Privacy Act 1993, ss 29(1)(a), 29(2)(b), 40, 66(2), 66(3) – Information privacy principle 6