An employee of a service station was called into the manager's office and told that he was suspected of taking stock without paying for it. Unbeknown to the employee, the manager recorded the interview on a concealed dictation-type tape recorder. The employee was dismissed but learnt of the tape recording seven months later in proceedings before the Employment Tribunal. He complained to me.

The complaint raised issues under information privacy principles 1, 3 and 4.

Information privacy principle 1

Principle 1 provides that agencies must not collect personal information unless it is collected for a lawful purpose connected with a function or activity of the agency and the collection is necessary for that purpose.

The manager submitted that the purpose of the interview was to ascertain whether the employee had removed stock from the premises.

I accepted that the manager's purpose in collection was to run an efficient business and keep track of stock. I also accepted his submission that if staff were not responsible in keeping track of stock this had to be investigated. I considered that preliminary investigation of suspected theft by staff would fall within the lawful purposes of any retail business, as would the collection of information relevant to a possible termination of employment.

I also had to consider whether collecting information in the interview was necessary for that purpose. I formed the opinion it was. It was also clear to me that making a tape recording served a purpose of providing evidence of the grounds for, and the procedure involved in, terminating the complainant's employment.

For these reasons I formed the opinion that the manager had not breached principle 1.

Information privacy principle 3

Principle 3(1) requires agencies, when they collect information directly from the person concerned, to take reasonable steps to make the person aware of a number of matters, including the fact that the information is being collected. The steps have to be taken before the information is collected or, if that is not practicable, as soon after as is reasonably practicable (principle 3(2)).

Given the nature of the interview, the complainant would have been aware that the manager was collecting information by the fact that he was listening carefully to the complainant's statements. However, the complainant did not know that his exact words and inflections were being recorded on a medium that would allow an accurate reproduction. I considered that making a tape recording would collect more information than merely listening to a conversation and would also open up additional purposes for which the information could be used. The fact of recording an interview on tape, rather than merely relying upon written notes and memory, is a matter that the individual should be made aware of under principle 3.

The manager submitted that two exceptions applied, justifying his non-compliance with principle 3.

Principle 3(4)(d) allows non-compliance with principle 3 if complying would prejudice the purposes of collection. For this to apply I would have to accept that informing the complainant about making the tape recording would have prejudiced the purposes of collection, which were to obtain:
- information regarding stock movement; and
- evidence of the precise course and content of the conversation.

The manager submitted that informing the employee would have prevented a free and frank discussion. I was not satisfied of that. Even if the manager's submission were correct, that would have only justified a delay until the conclusion of the interview. Informing the complainant immediately afterwards could not have prevented a free and frank discussion. However, the manager allowed some seven months to elapse before alluding to the recording during proceedings before the Employment Tribunal.

Principle 3(4)(e) permits non-compliance with principle 3 if compliance is not reasonably practicable. Given that the collection took place during an interview with the employee, and in view of the stated purpose, I could not accept that principle 3(4)(e) applied in these circumstances.

Having concluded that the manager did not have a reason for excusing him from complying with principle 3, I formed the opinion that he had breached principle 3.

Information privacy principle 4

Principle 4 prevents agencies from collecting information by means that are unfair or intrude unreasonably into the affairs of the person concerned. Taping an interview will not necessarily be unfair: there must be something in the circumstances surrounding the taping which makes it unfair to collect information by that means.

In this context, I noted that a tape recording differs from making notes of an interview because it records the minute details of what is said and how it is said. While it does not seem unreasonable to expect notes to be taken at an important interview, people would not necessarily expect to have it recorded onto a tape.

I also considered that an important element in assessing whether the means of collection are unfair is whether the employee would have responded differently had he known of the recording. The employee was not made aware of the reasons for the interview until the manager made allegations of a serious nature. The employee was never told the interview was being recorded.

By failing to advise the employee that the interview was being recorded, the manager misled him about the nature of the record, if any, which would be kept about the interview. Had the employee been aware he was being recorded he may well have answered the questions differently or, perhaps taken time to consider his responses in light of the gravity of the situation. I formed the view that the fact that the manager was aware the conversation was being recorded and the employee was not was a crucial feature of the collection.

Further, I considered that the nature of the employer/employee relationship and the circumstances in which the interview was being taped contributed to the unfairness of the means of collection in this case. The unfairness lay not in the fact of the recording, but in not telling the employee of it.

Interference with privacy

A collection of personal information will breach the Privacy Act if it breaches any of the collection principles and results in an adverse consequence for the complainant. In this case the complainant had commenced proceedings in the Employment Tribunal unaware of the existence and content of the tape recording, incurring costs that he might otherwise have avoided. Further, the way in which the recording was finally revealed by the service station caused substantial humiliation. I formed the opinion that a loss arose from the breach of principles 3 and 4 and that the manager had caused an interference with the complainant's privacy.

The parties could not agree upon a settlement. In these circumstances I would normally decide whether to refer the matter to the Proceedings Commissioner to consider taking proceedings to the Complaints Review Tribunal to obtain a remedy. However, because the breaches to principles 3 and 4 took place before July 1996, under section 79 of the Act, the complainant had no right to take the matter to the Complaints Review Tribunal. Although I had formed the opinion that there was no substance to the complaint relating to principle 5, the complainant was free to refer that matter to the Tribunal.

Indexing terms: Collecting personal information - Employer - Covert tape recording - Purpose of recording to evidence preliminary investigation of theft - Whether taping was necessary - Information privacy principle 1

Collecting personal information - Employer - Steps to make individual aware of fact of collection to be taken before collection or 'as soon as practicable' afterwards - Information privacy principle 3(1)(a) and 3(2)

Collecting personal information - Employer - Covert tape recording - Whether informing employee of taping would have prejudiced purpose of collection - Whether informing employee of taping was impracticable - Information privacy principle 3(4)(d) and 3(4)(e)

Collecting personal information - Employer - Covert tape recording - Collection by 'unfair means' - Covert recording misled employee - Information privacy principle 4

June 2001