Posted on July 11, 2017 by Carlo Zoppo
GIPA Act – CCTV released despite concerns regarding personal information
With the increasing use of CCTV cameras to monitor and record activities, media organisations and others are increasingly seeking access to that information. A recent NCAT decision considers whether the CCTV is ‘personal information’ and whether it should be released after pixelation of certain identifying characteristics.
The recent decision of the NSW Civil and Administrative Tribunal (NCAT) in Seven Network Limited v South Eastern Sydney Local Health District  NSWCATAD examines commonly raised public interest considerations and examines how they are to be applied and the weight to be afforded in the context of an access application under the Government Information (Public Access) Act 2009(GIPA Act).
In this matter the application for access included ‘incident reports and video of assaults on security and staff at hospitals since July 1 2014.’
The Applicant was an FOI editor for the Seven Network and the Respondent was a Local Health District providing health services over a number of local government areas.
Such applications raise issues pertaining to privacy of the individuals whose images are captured within the footage and the access that can or should be afforded by access applications under the GIPA Act.
The Respondent agency in this matter initially determined that it would not provide access to the video footage sought. An application was made to the Information and Privacy Commissioner for a review of the decision.
The Information Commissioner recommended that the agency should make a new decision by way of internal review and consider whether the agency is able to redact information through pixelation or create a new record by removing sections of the CCTV footage.
The Respondent made a further decision and concluded that there was an overriding public interest against disclosure of the information. The agency noted that it had no ability to redact or pixelate the footage sufficient to remove the personal information of those who were captured in the CCTV footage.
This seems to be a common argument as most agencies do not have the tools or the expertise to redact personal information by pixelation on CCTV footage.
Senior Members findings
The Senior Member found that the clips of CCTV footage that contained images of people would constitute ‘personal information’ where the person could be identified.
While the Senior Member accepted that disclosure of facial features of people depicted within the CCTV would reveal the personal information of a person, the Respondent went further and suggested that the disclosure of other features such as person’s gender, body shape, height, hair style, skin colour, gait and clothing were sufficient on their own to permit identification.
Further, the Respondent suggested other contextual information such as the specific location, the time and date of the incidents and the nature of the behaviour would also allow the identity of the person appearing in the images to be reasonably ascertained.
The Applicant argued that the issues raised by the Respondent in terms of identification of persons could be addressed by the pixelation of the faces, heads and necks of the persons depicted in the image.
The Senior Member examined the clips of CCTV footage of three incidents and accepted that the disclosure of the raw footage would reveal the personal information of the individual’s depicted in the footage.
Senior Member found however that in this case there would be no disclosure of personal information where faces, heads and necks and any identifying marks such as tattoos were pixelated or obscured prior to release. The Senior Member accepted that tattoos could be sufficiently distinctive to enable identification even when the face of a person is not displayed.
The Senior Member did however not accept that other elements such as the gait or body shape of a person would be sufficiently distinctive to enable identification where the images of faces, heads and the necks of the people depicted on the footage are concealed.
The Senior Member found that Footage #2 and #3 could be released only where the face head and any tattoos or other distinguishing features were pixelated.
Who will bear costs of video preparation?
The Senior Member considered whether the Respondent should be required to release pixelated CCTV footage and if so, who in the circumstances should bear the cost.
As the release of the images is unconditional, the Senior Member found that it was inappropriate for the Respondent to release the unpixelated footage to the Applicant on the understanding that the Applicant would pixelate the images and return unpixelated footage.
The only way footage #2 and #3 could be released is if the Respondent engaged a third party to pixleate the images and then return the pixelated footage to the Respondent for release pursuant to the access application.
According to the Senior Member there is no provision within the GIPA Act that allows for an agency to charge for the external costs of redaction and that it would be inappropriate to require the Respondent to bear the cost with the cost burden of the pixelation being a factor relevant to its consideration of the correct and preferable decision.
As the Applicant had agreed to pay for the costs of an external company under the control of the Respondent to undertake pixelation, the Senior Member set aside the decision to refuse access to footage #2 and #3 and agreed to allow access after the faces, head, neck and tattoos or other identifying marks were concealed by pixelation.
Public interest in confidentiality
Access to the one remaining piece of footage, CCTV footage #1 was refused as the Senior Member accepted that the the release of footage around the Safe Assessment Room (even if the face, head and neck were pixelated) could reasonably be expected to have the effect of prejudicing the effective exercise of the respondent’s function. In this case the Senior Member accepted that a patient being interviewed would expect that their interaction with a doctor would remain confidential and that if these interactions were disclosed it would diminish the confidence of patients of their treatment and their interactions with health professionals.
A copy of the decision can be found here