Information Access Case note: Seven Network Limited v South Eastern Sydney Local Health District [2017] NSWCATAD 210

Read the decision at NSW Caselaw: Seven Network Limited v South Eastern Sydney Local Health District [2017] NSWCATAD 210

Elements of a person’s gait or body shape in CCTV footage may not be sufficiently distinctive alone to prevent the release of CCTV footage where the face, head, neck and any identifying marks such as tattoos are concealed by pixelation.

What you need to know

The Applicant sought access to information held by the South Eastern Sydney Local Health District (the Respondent) concerning incident reports and video of assaults on security and staff at hospitals. The Respondent provided access to the incident reports subject to redactions, and refused access to 3 items of CCTV footage (Footage 1, 2 and 3) claiming overriding public interest considerations against disclosure.

The Tribunal affirmed the Respondent’s decision in relation to Footage 1, which was footage recorded in and around a Safe Assessment Room and set aside the decision to refuse access to Footage 2 and 3. The Tribunal ordered release subject to pixelation of the face, head, neck and any identifying marks such as tattoos. The Applicant offered to pay for the cost incurred by the Respondent to pixelate the footage, and therefore no issue of cost burden arose.

What is personal information in the CCTV footage?

The Respondent submitted that features in the footage including gender, body shape, height, hair style, skin colour, gait, and clothing (including uniforms) are sufficient on their own to permit identification, if not obscured.

The Tribunal considered that identifying marks such as tattoos may be sufficient to enable identification of an individual even when their face is not visible, if not pixelated. However the Tribunal did not consider that “any element of the gait or body shape of any person in any of the footage to be sufficiently distinctive as to enable  identification where the face, head and neck are concealed by pixelation” [56]. Additionally the Tribunal was not persuaded by the Respondent’s submissions that contextual factors could enable the identification of individuals [52].

Would releasing CCTV footage contravene an information protection principle or a health privacy principle?

The Tribunal found at [60] that to the extent that a person’s identity could be ascertained from the CCTV footage it would by its context constitute both personal and health information. Its release to the Applicant would not be for the purpose it was collected or directly related to that purpose [62]. The release of the footage without pixelation would therefore disclose personal information or reveal health information, involving a breach of the information protection principle in section 18 of the Privacy and Personal Information Protection Act 1998 or health privacy principle 11. However, the Tribunal found that the release of pixelated footage would not contravene any information protection principle or any health privacy principle.

Other considerations against disclosure

The Tribunal found  the Respondent did not establish or show the

• risk of harm to either staff or patients from the release of pixelated CCTV footage [74] (s.14T3(f)).
• footage in the public areas recorded constitute the supply of confidential information [82] (s.14T1(d)).
• treatment of a patient or the admission of a patient to hospital constitute supply to the hospital of confidential information [86]. The Tribunal distinguished that a person on admission will supply confidential information, from the act of admission or treatment [86] (s.14T(1)(d)).

The Tribunal accepted that the release of footage recorded in or around the Safe Admission Room, even if pixelated could reasonably be expected to prejudice the effective exercise of the Respondent’s functions [92]. However the release of footage in the public areas could not reasonably be expected to prejudice the effective exercise of the Respondent’s functions [95].

Legislative background

Overriding presumptions against disclosure (table to section 14 of the GIPA Act):

• 1(d) supply of confidential information;
• 1(f) effective exercise of the agency’s functions;
• 3(a) personal information;
• 3(b) contravene a IPP or HPP;
• 3(f) risk of harm or harassment.

Factual background

The Applicant sought access to information held by the Respondent in respect of incident reports and video of assaults on security and staff at hospitals since July 2014.The Respondent separated the request into two parts. Incident reports and video footage and released the incident reports with identifying information redacted and refused to release the video footage.

The Applicant sought a review by the Information Commissioner, who recommended under section 93 the Respondent reconsider the decision and whether it is able to redact information through pixelation or create a new record by removing sections of footage.

The Respondent reconsidered its decision, but refused to release the video footage based on overriding considerations against disclosure concerning the personal and health information contained in the footage. The Respondent in the reconsidered decision noted that there was no ability to redact or pixelate within the agency and further that any redaction or pixelation would make the footage meaningless.

Tribunal findings

The Tribunal examined each of the considerations against disclosure. The Tribunal accepted that if persons in CCTV footage can be identified, then the footage would be personal information of those persons [42].

The Tribunal applied a two-step process to identifying if the information released would disclose personal information. Firstly it considered if personal information could be revealed by the release of the footage without pixelation, and then secondly it considered if the process of removal of distinctive features of individuals by pixelation would have the same effect [61 to 63].

The Tribunal found at [101] that the public interest in disclosing Footage 1 is not sufficient to overcome the detrimental consequences to the effective exercise of the Respondent’s functions. These consequences included inhibiting the efficacies of Safe Assessment Rooms and potentially discouraging patients from attending a hospital [94]. The Tribunal found an overriding public interest consideration against the disclosure of the footage even with pixelation.

The Tribunal found at [102] that the general public interest in releasing Footage 2 and 3 without pixelation would be outweighed by the consideration against disclosure. However there would be no considerations against release if Footage 2 and 3 if the face, head neck and any tattoos or other distinguishing feature are pixelated [103].

Tribunal outcome

The Tribunal partially affirmed the Respondent’s decision and partially set aside the decision.