3 Jul 2019, 09:00

A man made an access request to a government agency for the video footage taken by a staff member of him protesting outside one of their offices. The agency declined his request on the basis that the staff member made the video in their personal capacity and on their personal device.

Principle 6

The man was not satisfied with the agency’s response and complained to our Office. His complaint raised issues under principle 6, which provides individuals with a right to request access to the personal information held about them by an agency. Under principle 6, the presumption of providing access to personal information is strong and is limited only by the withholding grounds in sections 27-29 of the Privacy Act.

The agency advised that although the recording was made on their premises during work hours, the staff member had acted in their personal capacity (rather than on instruction from their manager) and, consequently, the agency was not responsible for collecting the information in question.

The agency maintained that while it did hold a copy of the video recording, it did not consider it had a lawful purpose for doing so. As a result, it intended to return the recording to the staff member under principle 9. The agency told the man it was not in a position to make the recording available to him.

Our view

In our view, the agency did collect the information in question (the recording of the man protesting) as the recording was made by a staff member during work hours, at an agency office and with consent from management.

We noted that, but for the fact that the staff member was an agency employee, they would not have had any contact with the man. On that basis, the staff member’s actions could not be seen to be have been carried out in a purely personal capacity.

We explained that while there may be issues under principle 9, relating to how long an agency holds information, it did not constitute a proper basis for withholding the recording under sections 27-29. We advised the parties that there had been an interference with the man’s privacy by not releasing a copy of the video recording to him.

We closed our file and the man decided to take his complaint to the Human Rights Review Tribunal.

Settlement

It later emerged that the recording of the man protesting had in fact been made using an agency video camera, rather than the staff member’s personal device. The agency acknowledged its mistake in responding to the man’s request and apologised for the error. A settlement was reached between the parties that included the release of the recording and the payment of $15,000 compensation to the man. This resolved the complaint, which had been going on for a number of years.