15 Nov 2019, 09:00

A fast food restaurant declined to hand over video footage to three customers who said they were harassed by a restaurant employee. The trio, who were members of one family, complained to our office.

The request for the video footage was made by a union representative who acted for the complainants. The request was prompted by their claim there had been an altercation with an employee at the restaurant. The complainants said the employee had intimidated them into leaving the restaurant.

The complainants, through their representative, said the fast food restaurant had treated them unfairly because it did not discipline the employee who had harassed them.

Principle 6

Under principle 6 of the Privacy Act, individuals have a right to access to personal information about themselves held by an agency, unless there is a withholding ground that applies.

Personal information may be stored or recorded in a variety of media, including video and audio recordings.

The restaurant

When we contacted the restaurant, its representative explained it had not handed over the video footage because it had not obtained confirmation the union representative was authorised to act for the complainants.

We were able to confirm the union representative had been appointed by the complainants. We requested to review the video footage.

Sections 27-29 of the Privacy Act set out possible reasons why an agency could withhold personal information. The company’s representative explained it had withheld the footage because it included other people and it would be a breach of their privacy to release it. The company referred to section 29(1)(a), which enables an agency to withhold personal information if releasing it would be an unwarranted disclosure of the affairs of others.

Our view

Where the privacy interests of others are involved, those interests must be strong before the agency can rely on section 29(1)(a) to withhold the information. Slight embarrassment of third parties is not likely to be enough to outweigh the requester's right of access.

After viewing the footage, we decided the complainants’ interest in receiving the two recordings – one taken inside the restaurant and the other outside - outweighed the right of the others included in the footage to have their privacy protected. In the language of s 29(1)(a) of the Act, we were not satisfied that giving the requester the footage that incidentally included other people would involve the “unwarranted disclosure” of those third parties’ affairs.

The other customers had been in a public place at the time, and the complainants had seen them and engaged with some of them. On the basis of viewing the footage, we did not consider the other people in the footage to have a high privacy interest.

We concluded that the company did not have a proper basis to withhold the footage and that it had interfered with the complainants’ privacy. We advised the company that it should release the footage to the complainants.

End note

The company did initially offer to allow the complainants’ representative to view the footage. This offer was declined. The complainants wanted a copy of the footage as they believed it was evidence that could be used in possible legal action against the restaurant.

The company subsequently provided the footage to the complainants. We were satisfied that it had taken reasonable steps to resolve the complaint and we closed the file.