Request for camera footage of three Taser incidents

Privacy
Legislation display text:
Official Information Act 1982, ss 9(2)(a), 9(1), 16
Agency:
New Zealand Police
Ombudsman:
Peter Boshier
Case number(s):
448845,
450946
Issue date:
Format:
HTML,
PDF,
Word
Language:
English

Section 9(2)(a) OIA applied—footage of two incidents particularly sensitive—pixelation not sufficient to address privacy interests—footage of third incident not so sensitive—pixelation would make the risk of identification negligible—strong public interest in release because the footage raised concerns about Police use of the Taser—public interest met by allowing requesters to view footage of two incidents, and by releasing a pixelated copy of the third incident

Background

These two cases are part of a series of complaints where the Ombudsmen have considered access to Taser camera footage.[1]

In one case, a TVNZ journalist requested copies of Taser camera footage from Police that related to three separate Taser discharges, which were investigated and reported on by the Independent Police Conduct Authority (IPCA). In the other, a TV3 journalist requested a copy of the Police CCTV footage of one of the same incidents, which took place in police cells. The IPCA had found the Police use of the Taser in all three incidents to be unjustified. The IPCA reports were published.

Police refused the requests under section 9(2)(a) of the Official Information Act (OIA), to protect the privacy of the tasered persons. Police considered the publication of the IPCA report addressed the public interest in accountability for Taser misuse in these cases. The requesters complained to the Ombudsman.

Investigation

The Chief Ombudsman requested a copy of the footage and an explanation of the reasons for withholding. He consulted the Privacy Commissioner and the individuals who appeared in the footage before forming his opinion. Two of the individuals, and a family member who responded on behalf of the third individual, declined consent to release the footage. The Chief Ombudsman articulated some general principles regarding the competing privacy and public interest considerations, before applying those to the three incidents in question.

Privacy

Section 9(2)(a) of the OIA applies where withholding is necessary to protect the privacy of natural persons. In assessing the privacy interests, the Chief Ombudsman considered the following matters.

Was the person identifiable?

The starting point for determining whether or not release of the information would have privacy implications was whether the information involved an ‘identifiable’ individual. It was therefore necessary to consider whether the person featured in the footage was identifiable, including whether editing could reduce or eliminate the potential for identification.

It may be that editing would reduce the prospect of identification by the majority of potential viewers, however, if a person could still be identified by people that know them then this can raise privacy concerns. The Privacy Commissioner commented:

Although the risk of wider identification may be diminished by editing, pixelation, and the location of the incident, it is not likely to prevent close friends and family who know the details of the incidents from identifying the individuals. This makes it very difficult to usefully mitigate the privacy interest by pixelating the footage.

If close friends or family who already know the details of the incident could potentially identify a person, the need to withhold information to protect the person’s privacy will depend on what additional information would be revealed by its release.

If the possibility of identification is negligible, then there is unlikely to be a strong case for withholding information under the OIA to protect privacy.

What would be revealed?

The extent to which individual privacy requires protection depends on the content and context of the footage. What would release of the footage reveal about the person?

In some instances, release of Taser camera footage would reveal the fact that an individual came to the attention of Police and behaved in a manner that led to Police discharging a Taser. These are matters that attract a significant privacy interest if not already known in relation to that person.

Aside from revealing the fact that a person has had an encounter with Police, the Privacy Commissioner’s office commented that generally ‘footage of individuals being tased by Police has a high privacy interest. There is an inherent indignity to being restrained by Police, and the effects of the Taser itself only adds to this’.

The Chief Ombudsman commented that the strength of the privacy interest associated with visual images of a person being restrained or tasered will vary depending on what the footage captures. There will be a high privacy interest where the incident shows a person in a particularly vulnerable position, for instance, where intimate parts of their body are exposed, they are obviously in pain, or have lost control of their bodily functions. However, if the images are less intrusive, then the privacy interest associated with the content of the footage is not likely to be as strong.

In these cases, there was also a considerable amount of information in the public domain by virtue of the IPCA reports that had been released. The reports were anonymised, but if camera footage was released that would enable people to be identified, this would link the information in those reports with a particular person.

To whom would it be revealed?

The complainants were television journalists. A natural consequence of disclosing a copy of the video would be its publication on national television. The Chief Ombudsman had to consider the likely consequences of release in that context.

The Privacy Commissioner considered that the distress and humiliation an individual might feel as a result of information released about them is a privacy consideration separate from the risk of identification. He noted:

As a general statement, the privacy interest in information is not limited to third parties identifying the individual concerned. Knowing about and being exposed to public showing and discussion of information can certainly impact on an individual’s well-being particularly where there is a non-zero chance of identification.

The Chief Ombudsman accepted that even if identification was unlikely, the simple knowledge that information about oneself was going to be on television could be distressing depending on what that information shows. For a vulnerable person, that distress could have a serious impact on their mental health and wellbeing.

In light of this, the Chief Ombudsman considered whether an alternative form of release might be an appropriate option to address the privacy concerns expressed. Section 16 of the OIA allows an agency to make information available in a number of ways including providing an opportunity to view the information. If there is good reason to refuse a request for a copy of the information, viewing the information can be an alternative form of release.

The Chief Ombudsman accepted that permitting a journalist to view the video and discuss the contents would still intrude on a person’s privacy. However, this intrusion would be of a lesser degree than any kind of release which permitted direct republication or broadcast to the world at large.

The person’s views

It is important to obtain, where possible, the views of the individual(s) featured in the footage in order to accurately understand the impact that release might have on them.

It is helpful to understand from these individuals, what their views are about the likelihood that people would be able to identify them, whether editing could address this, and in general, what impact they consider release of the information would have on their lives.

In some instances, a person may not be worried about the release of information about them. If their views are fully informed, then there is unlikely to be a basis for withholding information to protect their privacy.

Public interest

Section 9(2)(a) is subject to a public interest test. This means the decision maker, and the Ombudsman on review, must consider whether the need to withhold is outweighed by the public interest in release. If it is, the information must be released. If it is not, the information can be withheld.

The Chief Ombudsman noted that ‘the public wants to be reassured that Police are kept accountable for the use of force’.

In previous investigations about the refusal of Taser camera footage, successive Ombudsmen determined that Police’s internal review mechanisms and investigations by the IPCA went a significant way towards meeting the public interest in Police being accountable for the use of Tasers. Against this background, a general public interest in seeing whether Police used the Taser appropriately had not usually been considered sufficient to outweigh the privacy interests requiring protection.

However, if a tasered person was seriously harmed, or was particularly vulnerable, or there was some suggestion that Police use of the Taser was questionable, then the public interest in release of information about that incident would increase. This may tip the balance between the protection of privacy and the public interest towards release.

In these complaints, all the requests were for footage where Police use of the Taser raised concerns. This significantly increased the public interest in release of information to promote accountability.

Police argued that the publication of an IPCA investigation report, which included a description of the events, and a summary of the camera footage that the IPCA viewed, addressed the public interest in accountability for the use of force. In contrast, the requester submitted that describing the footage was not an adequate substitute for seeing the recording itself.

The Chief Ombudsman agreed that ‘there is a significant difference between a written account of events and seeing those events unfold live’, a fact which has been recognised by the courts when assessing public interest arguments for media access to video footage.

In Rogers v TVNZ [2007] NZSC 91 (Rogers), the Supreme Court dealt with an application to prevent TVNZ broadcasting a police video of Mr Rogers confessing to murder. The video was never shown at Mr Rogers’ trial (in which he was acquitted) as it was ruled inadmissible, however a written summary of the video was contained in the court judgments regarding admissibility.

The Court agreed that the video conveyed more information than the written summaries, as Justice McGrath explained (at paragraph 101):

It is well recognised that, in general, photographic images may contain significantly more information than textual description. This is especially so with sequential images on a videotape which will often portray graphically intimate and personal details of someone’s personality and demeanour…

Justice Tipping (at paragraphs 69 and 72) considered that the ‘enhancement dimension’ of visual imagery was a material factor in concluding that Mr Rogers did have a legitimate privacy interest despite the fact of his confession and a description of the video being in the public domain. However, the additional information conveyed in a visual medium was equally a factor to be considered when assessing the public interest. Justice Tipping did not accept that written summaries were sufficient to allow for effective public debate and considered that the public should be ‘fully informed’ through release of the video.

The majority of the Court considered that the public interest in open justice meant that the public should have access to the video itself.

In TVNZ and ors v Knox and ors [2017] NZDC 3329, the Napier District Court relied on the Rogers decision when granting a media request for a copy of Taser camera footage that had earlier been played in open court during a trial. The death of the person tasered, and questions around the police officers’ conduct lead to a criminal prosecution of those officers. Clearly these factors indicated a strong public interest in release of the footage, however the parents of the deceased were opposed to release on privacy grounds. The District Court concluded that these privacy interests must give way to the public interest in open justice.

In the Chief Ombudsman’s opinion, these cases supported the argument that there can be a public interest in the release of a visual record of an event even though written accounts of the same event, including judicial or investigative conclusions about that event, may already be in the public domain.

The Chief Ombudsman went on to compare the content of the footage with the IPCA summaries, and looked at whether the summaries captured all of the content. He considered the extent to which viewing the footage would provide a greater context and understanding of the Taser incidents over and above reading a written summary. He also said that release of video footage would enable the public to better understand how the IPCA reached the findings that it did.

Application in this case

Incident 1

Applying the general principles set out above, the Chief Ombudsman found that pixelation would not address the identification concern in this case. The individual had a distinctive gait and voice pitch, and was from a small town in which he was already well known. Concerns were expressed that he would be identified locally with negative repercussions. However, the footage contained significant additional information that was not referenced in the IPCA report, namely the aggressive and demeaning language used by the officers towards the individual while restraining him. The Chief Ombudsman concluded that the public interest in release meant that the TVNZ journalist should be shown the footage and allowed to take notes of the dialogue without any identifying information, but a copy should not be released.

Incident 2

While pixelation would have minimised the possibility of identification, the images captured were of the person being stripped while being tasered, and showed them in an extremely vulnerable position. Evidence was provided that knowing this would be broadcast would likely be severely damaging to the individual’s mental health and emotional wellbeing regardless of whether identification was objectively likely. The Chief Ombudsman considered that there was a high privacy interest in the information. However again, the CCTV footage in particular contained additional information not referenced in the IPCA report as it showed a number of Police officers watching the incident who appeared to be commenting on the event as it took place. The public interest in seeing the context for this confronting footage was significant, but not sufficient to override the harm to privacy associated with broadcast. The Chief Ombudsman concluded that the public interest meant that the journalists should be shown the respective footage (Taser and CCTV) they requested, but copies should not be released.

Incident 3

The footage showed the person, fully clothed, and falling to the ground when tasered. There was nothing else in the footage about his demeanour or that of the officers towards him that would increase the harm associated with release. While the Chief Ombudsman accepted that there were privacy interests associated with identification, he considered that pixelation would make the likelihood of identification negligible. He also considered that there was a public interest in release as it provided meaningful context for the IPCA findings, in particular, this footage captured a justified use of the Taser followed by an unjustified use, which was highly effective in illustrating where the line is drawn by Police and the IPCA for the appropriate use of force. The Chief Ombudsman considered that Police should provide a pixelated copy of the footage to the requester.

Outcome

The Chief Ombudsman recommended that the Police allow the requesters to view the Taser camera footage of incidents 1 and 2, and release an edited copy of the footage of incident 3. The Police complied with the Chief Ombudsman’s recommendation.

This case note is published under the authority of the Ombudsmen Rules 1989. It sets out an Ombudsman’s view on the facts of a particular case. It should not be taken as establishing any legal precedent that would bind an Ombudsman in future.

 

[1]     See cases 416215, 290369 (2015), 290369 (2012) and W61471.

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