6E7YWS and Department of Housing and Public Works (311309) 24 October 2013

REASONS FOR DECISION

Summary

1. The applicant, a building security officer employed by the Department of Housing and Public Works (Department), applied for access under the Right to Information Act 2009 (RTI Act) to documents concerning an internal investigation into an incident involving the applicant and a member of the public.

2. The applicant seeks access to four closed circuit television (CCTV) recordings (Recordings), depicting the member of the public’s presentation at and entry into the relevant building.

3. For the reasons set out below, the Department was entitled to refuse access to the Recordings on the ground their disclosure would, on balance, be contrary to the public interest. The Recordings contain the personal information of others, disclosure of which could reasonably be expected to give rise to a public interest harm and to prejudice the protection of individual privacy.

Background

4. The applicant was involved in the removal of a member of the public from Queensland Government premises on a date in 2011. The member of the public (Complainant) subsequently lodged a formal complaint with the Department about the circumstances of his removal.

5. The Department commissioned an investigation into the matter and a report was prepared (Investigation Report). The Investigation Report relevantly concludes that the applicant had not made out a claimed defence,¹ and records a finding that the applicant ‘grabbed’ the Complainant,² although it does not recommend any disciplinary action.

6. The applicant disputes the Report’s findings and seeks access to the Recordings, which he claims will vindicate his position and enable him to challenge the conclusions contained in the Investigation Report. In his own words:³

The only fact that is in issue is – how did [the Complainant] gain access to the QGSC, which was locked and had closed for the day? I maintain that [the Complainant] forced entry to the QGSC by banging hard on the door, and causing it to open, thus allowing him to enter. If he did gain entry this way then I believe that he committed a criminal offence.

  …

The Investigator told me that [the Complainant] had been let in to the QGSC by a staff member. There is no evidence that this happened in any of the information I have been given. Either the Investigator deliberately misled me, or he made an assumption that that was how [the Complainant] gained entry. In any event he, as part of the investigation, should have known how [the Complainant] gained entry and it should have been mentioned in his report. I was supplied with a heavily censored copy of that report and this important factor does not get a mention.

I relied on Section 277 of the Criminal Code to justify my actions in removing a “trespasser” from the QGSC. The Investigator rejected this although there is no reasoning as to why he did, in his report. My read on this is that he thought [the Complainant] was let in to the QGSC and therefore he was there legally and was not a trespasser.

…

If [the Complainant] forced entry, as I am satisfied he did, then in my view he became a “Trespasser” and I was entitled to have the protection of Section 277 of the Criminal Code and the two allegations against me that were substantiated should not have been.

Significant procedural steps

7. Significant procedural steps relating to the application and the external review are set out in the appendix to this decision.

Reviewable decision

8. The decision under review is the Department’s decision dated 22 November 2012, to refuse the applicant access to the Recordings (Decision).

Evidence considered

9. Evidence, submissions, legislation and other material considered in reaching this decision are disclosed in these reasons (including footnotes and appendix).

Information in issue

10. The information in issue comprises the Recordings – four CCTV recordings⁴ containing footage of the Complainant and his entry into the building.

Relevant law

11. Under the RTI Act, a person has a right to be given access to documents of an agency.⁵ However, this right is subject to limitations, including grounds for refusal of access.⁶ Access may be refused to information where its disclosure would, on balance, be contrary to the public interest.⁷ The RTI Act identifies many factors that may be relevant to deciding the balance of the public interest⁸ and explains the steps that a decision-maker must take⁹ in deciding the public interest as follows:

• identify any irrelevant factors and disregard them
• identify relevant public interest factors favouring disclosure and nondisclosure
• balance the relevant factors favouring disclosure and nondisclosure; and
• decide whether disclosure of the information in issue would, on balance, be contrary to the public interest.

Findings

12. No irrelevant factors arise in the circumstances of this case. I will now consider factors favouring disclosure and nondisclosure of the Recordings.

Factors favouring disclosure of the Recordings

13. The applicant submits¹⁰ that disclosure of the Recordings could reasonably be expected to:

• promote open discussion of public affairs and enhance the Government’s accountability¹¹ 
• allow or assist inquiry into possible deficiencies in the conduct or administration of an agency or official¹²
• advance the fair treatment of individuals and other entities in accordance with the law in their dealings with agencies¹³
• contribute to the administration of justice for a person¹⁴
• reveal or substantiate that an agency or official has engaged in misconduct or negligent, improper or unlawful conduct;¹⁵
• contribute to the administration of justice generally, including procedural fairness;¹⁶ and
• contribute to the enforcement of the criminal law.¹⁷

14. As some information in the Recordings is the applicant’s personal information,¹⁸ I have also considered the application of the public interest factor favouring disclosure to an individual of their own personal information.¹⁹

Agency conduct and enforcement of criminal law

15. I do not consider disclosure of the Recordings could reasonably be expected to reveal/substantiate agency/official misconduct etc., or assist inquiry into possible deficiencies in public conduct.²⁰  I cannot see how disclosure of footage featuring the actions of a member of the public – the Complainant – could reasonably be expected to reveal or substantiate official or agency misconduct, impropriety etc., or assist inquiry into deficiencies in agency conduct, as these factors require.

16. Nor do I accept that disclosure of the Recordings to the applicant could reasonably be expected to contribute to the enforcement of the criminal law.²¹ The relevant investigation was of an administrative – rather than criminal – nature, and I am unable to identify how release of information of the kind in issue to the subject of such investigation,²² as the applicant was, might advance the administration of the criminal law so as to enliven this factor for consideration.

17. Beyond merely asserting their relevance, the applicant has not articulated a case for the application of these factors,²³ and taking into account the above considerations I am not satisfied that they arise for assessment in this case.

18. Accordingly, I have not taken any of them into account in evaluating the balance of the public interest.

Transparency and accountability

19. I acknowledge the general public interest in promoting access to government-held information. I also acknowledge that disclosure of the Recordings – comprising as they do evidentiary materials apparently relied upon by the investigator in the course of his enquiries – may enhance the transparency of the investigation process for which the Department is ultimately responsible, and to some degree the accountability of the Department for that process.²⁴

20. However, I note that the Department has provided the applicant with a considerable amount of information to date, including parts of the Investigation Report directly concerning him. Disclosure, transparency and accountability public interests have, in general terms, been adequately served in the circumstances of this case. I am not persuaded that release of what is essentially raw evidentiary material – much of the content of which, as discussed further below,²⁵ the applicant has direct knowledge – would greatly advance these public interests. I afford them limited weight.

Fairness and administration of justice

21. As for the several fairness and administration of justice factors relied on by the applicant, there is a public interest in the subject of an investigation having access to information relied upon in reaching adverse findings against that subject, or, conversely, to information that may assist such a person in either mounting a defence or clearing their name.

22. In this regard, I acknowledge the applicant’s concerns as to the clarity of the Investigation Report; while it addresses his wrongful entry²⁶ defence, it does appear to assume that the Complainant’s entry was lawful,²⁷ without analysing or making a finding on this issue.

23. On the other hand, I also note that the Investigation Report did not recommend disciplinary action against the applicant and I understand no such action has resulted. It is therefore arguable that in these circumstances there are no ‘fair treatment’ or procedural fairness issues arising to be advanced by disclosure of the Recordings, for the simple reason that the applicant has not suffered any concrete adverse consequences.²⁸ 

24. Nevertheless, if it is accepted that the comments in the Investigation Report as to the propriety of the applicant’s actions do amount to an adverse finding,²⁹ then insofar as the Recordings partly³⁰ correlate with his account of events,³¹ I acknowledge they may provide him with a degree of corroborative assistance. Thus disclosure could arguably further the public interest in advancing fair treatment and contributing to the administration of justice.

25. Accepting these factors do arise for consideration, however, I consider they warrant only moderate weight. This is due partly to the fact that any negative consequences accruing to the applicant as a result of the investigation have, as noted above, been relatively modest. Additionally, my view as to weight is informed by the fact that disclosure of the Recordings would not significantly promote these public interest factors, as:

• the applicant does not require access to the Recordings to pursue review of the Investigation Report; and
• the footage they contain would not appear to materially advance his defence.

26. The Recordings may be relevant to an assessment of the applicant’s defence and ensuring his fair treatment. Achieving this, however, does not require disclosure of the Recordings to him. This is because the applicant witnessed³² key events depicted in the Recordings. He is therefore adequately positioned to give direct evidence of those events, and to put to an appropriate authority his case that they ultimately justified his actions in removing the Complainant, notwithstanding the Investigation Report’s conclusions to the contrary. Any reviewing authority empowered to entertain his complaints might then independently and objectively assess relevant material – including, as and if appropriate, the Recordings.

27. Additionally, any weight that may attach to these pro-disclosure factors is further diminished by the fact that the Recordings do not on my viewing establish the fact on which the applicant’s defence ultimately appears to hinge – forced or wrongful entry – any better, at least, than his own observations. I am constrained by section 108 of the RTI Act from revealing in these reasons information disclosure of which is claimed to be contrary to the public interest. It is sufficient to note, however, that the Recordings do not themselves demonstrate forced entry. Relevant segments of footage do not confirm the exact cause of the door opening,³³ which remains a matter for inference and speculation.

28. Accordingly, I consider that disclosure of the Recordings would not materially advance the fair treatment/administration of justice public interest factors raised by the applicant, and, as noted,³⁴ afford them moderate weight.

Applicant’s personal information

29. The Recordings contain images of the applicant, giving rise to a public interest factor favouring disclosure of that information to the applicant.³⁵ 

30. However, these images of the applicant in the main appear after the Complainant has obtained access to the building. In the circumstances, disclosure of this footage to the applicant is unlikely to assist any review of the investigator’s findings, as relevant portions reveal nothing as to the Complainant’s method of access. Nevertheless, I acknowledge the public interest in individuals being able to obtain access to their own personal information, and attribute moderate weight to this pro-disclosure factor.

Factors favouring non-disclosure of the Recordings

Personal information and privacy

31. The Recordings feature the personal information of individuals other than the applicant – relevantly, identifiable images of the Complainant, and in some footage, members of the public and other building occupants – disclosure of which the RTI Act expressly provides would give rise to public interest harm.³⁶

32. Additionally, by disclosing footage of members of the community going about their business on public premises, release of this footage could in my view reasonably be expected to prejudice the protection of featured individuals’ right to privacy. Accordingly, a factor favouring nondisclosure of the Recordings also arises for consideration.³⁷

33. There is a clear public interest in ensuring that government protects privacy and treats with respect the personal information it collects from members of the community. This is particularly so in relation to information collected by relatively intrusive methods such as CCTV, which generally operates in a context leaving the general public with very little choice but to submit to the monitoring and recording of their image if they wish to avail themselves of government services or enter public premises.³⁸   

34. I acknowledge that the applicant is aware of the Complainant’s identity, and observed his actions as depicted in the Recordings.³⁹ This arguably diminishes relevant privacy interests, at least as they pertain to the Complainant.⁴⁰  It does not, however, negate them, and given the nature of the information the Recordings depict⁴¹ – including the Complainant’s carriage, demeanour and physical distress – I consider these interests remain sufficiently substantial so as to attract considerable weight in determining where the balance of the public interest in this case lies.

35. I therefore attribute significant weight to the public interest in safeguarding the privacy of others and to avoiding the public interest harm resulting from the disclosure of their personal information.

Balancing the relevant public interest factors

36. To summarise, in the circumstances of this case I afford:

• limited weight to the public interest considerations relating to promoting access to government-held information, and enhancing government accountability and transparency
• moderate weight to the public interest factor favouring disclosure of the applicant’s personal information
• moderate weight to the public interest factors relating to fairness and administration of justice; and
• significant weight to the public interest factors relating to the protection of personal information and the privacy of other individuals.

37. Balancing these factors against one another, I consider the substantial public interest in safeguarding individual privacy and avoiding public interest harm by protecting personal information should be preferred to considerations⁴² favouring disclosure of the Recordings.

38. Implicit in both the RTI Act and its counterpart, the Information Privacy Act 2009 (Qld) (IP Act), is the recognition⁴³ that individuals should have a measure of control over the personal information collected from them by government. By extension, an access applicant should not be put in a position to control the dissemination of the personal information of others, unless the balance of the public interest demands otherwise in the circumstances of a particular case. Bearing in mind that:

• the applicant is currently possessed of sufficient information to enable him to seek whatever remedial action may be open to him; and 
• no disciplinary action has been taken against him, such that whatever adverse consequences may arguably have resulted from the Investigation Report have been relatively modest,

I am not satisfied this is such a case.

39. For these reasons, I find that disclosure of the Recordings would, on balance, be contrary to the public interest.⁴⁴

Applicant’s submissions

40. I conveyed the substance of my reasoning as set out above to the applicant in my letter dated 9 August 2013.[45] Apart from flagging his knowledge of the Complainant’s identity (an issue addressed above),[46] the applicant responded by stating that the Complainant was given access to the Recordings, and that consequently:

There appears to be a different rule for him. Surely both parties in a “dispute” should receive the same consideration. In this case they did not. I don’t think that it is in the “public interest” for [the Complainant] to be given access, and yet I am refused similar access.⁴⁷

41. I am not aware as to whether the Complainant has, as the applicant contends, been given access to the Recordings. In any event, I cannot see that this issue has any bearing on the question I am required to address – whether disclosure to the applicant of information containing the personal information of others would, on balance, be contrary to the public interest. For the reasons explained above, I consider that it would.

DECISION

42. I affirm the decision of the Department to refuse access to the Recordings under section 47(3)(b) of the RTI Act on the basis that disclosure would, on balance, be contrary to the public interest.

43. I have made this decision as a delegate of the Information Commissioner, under section 145 of the Right to Information Act 2009 (Qld).

________________________
Jim Forbes
Acting Assistant Information Commissioner

Date: 24 October 2013

APPENDIX

[1] ‘Defence of premises against trespassers - removal of disorderly persons’ as set out in section 277 of the Criminal Code Act 1899 (Qld) (Criminal Code): see paragraph 6.1 of the Investigation Report.
[2] Paragraph 6.2.
[3] Submission dated 10 June 2013, attached to an email dated 9 June 2013. I will refer to this document as the ‘9 June 2013 submissions’.
[4] Footage from cameras G11, G12, G21 and G26. The Recordings form part of ‘Attachment 5’ to the Investigation Report.
[5] Section 23 of the RTI Act.
[6] The grounds for refusal are set out in section 47(3) of the RTI Act.
[7] Section 47(3)(b) and 49 of the RTI Act. The term public interest refers to considerations affecting the good order and functioning of the community and government affairs for the well-being of citizens. This means that in general, a public interest consideration is one which is common to all members of, or a substantial segment of, the community, as distinct from matters that concern purely private or personal interests. However, there are some recognised public interest considerations that may apply for the benefit of an individual.
[8] Schedule 4 of the RTI Act sets out a non-exhaustive list of factors for deciding whether disclosing information would, on balance, be contrary to the public interest.
[9] Section 49(3) of the RTI Act.
[10] Via both his application for external review and the 9 June 2013 submissions.
[11] Schedule 4, part 2, item 1 of the RTI Act.
[12] Schedule 4, part 2, item 5 of the RTI Act.
[13] Schedule 4, part 2, item 10 of the RTI Act.
[14] Schedule 4, part 2, item 17 of the RTI Act.
[15] Schedule 4, part 2, item 6 of the RTI Act.
[16] Schedule 4, part 2, item 16 of the RTI Act.
[17] Schedule 4, part 2, item 18 of the RTI Act.
[18] Personal information is defined in section 12 of the IP Act as: information or an opinion, including information or an opinion forming part of a database, whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion. Identifiable images captured by CCTV systems are generally recognised as falling within this definition: see OIC Information Sheet What is Personal Information? available at http://www.oic.qld.gov.au/guidelines/for-community-members/Information-sheets-privacy-principles/what-is-personal-information (accessed 24 October 2013).
[19] Schedule 4, part 2, item 7 of the RTI Act.
[20] That is, the public interest factors prescribed in schedule 4, part 2, items 5 and 6 of the RTI Act.
[21] Schedule 4, part 2, item 18 of the RTI Act.
[22] As opposed, say, to agencies with appropriate investigatory powers and law enforcement responsibilities, such as the Queensland Police Service.
[23] Nor sought to contest my 13 August 2013 preliminary view that they do not apply.
[24] Being, generally, the public interests reflected in schedule 4, part 2, item 1 of the RTI Act. I should note, however, that whether disclosure of the Recordings would serve the public interest reflected in the opening words of this factor – ‘promote open discussion of public affairs’ is open to question. The relevant ‘affairs’ in this case comprise a workplace investigation into the conduct of an individual officer, as instigated by a private complainant – matters which would not, at face value, appear to constitute ‘public’ affairs.
[25] At paragraph 26.
[26] Paraphrasing section 277(1) of the Criminal Code, as cited in the applicant’s submissions extracted in paragraph 6.
[27] Page 12 and paragraph 6.1 of the Investigation Report. In the 9 June 2013 submissions (relevantly extracted in paragraph 6), the applicant states that the investigator conveyed to the applicant directly his view that another officer within the building activated the doors’ opening mechanism.
[28] Resulting from the Investigation Report; the applicant in his submissions dated 20 August 2013 stated that he had suffered various consequences such as being informed he could be liable to dismissal and criminal charges, and he was prohibited from talking with colleagues who had witnessed the incident. While I acknowledge these matters may have caused the applicant stress, in my view they are properly to be regarded as consequences flowing from the lodging of the complaint itself and the investigation process, rather than the Investigation Report.
[29] Of the kind triggering procedural fairness obligations.
[30] The Investigation Report states that the applicant did not actually witness the Complainant’s entry into the premises (paragraph 5.14.3).
[31] As recited, for example, in his submissions dated 31 January 2013.
[32] See the applicant’s submissions dated 31 January 2013, in which he states he saw the Complainant ‘…approach the doors to the Queensland Government Service Centre (QGSC) and commence banging on them’.
[33] And contains nothing definitively negating an innocent explanation, which might even include the applicant’s version of events – ie, that the Complainant’s banging caused the doors to open, if done without intent.
[34] At paragraph 25.
[35] Schedule 4, part 2, item 7 of the RTI Act.
[36] Schedule 4, part 4, section 6 of the RTI Act.
[37] The nondisclosure factor in schedule 4, part 3, item 3 of the RTI Act. The concept of ‘privacy’ is not defined in the IP Act or RTI Act. It can, however, be viewed as the right of an individual to preserve their personal sphere free from interference from others – see the Australian Law Reform Commission’s definition of the concept in “For your information: Australian Privacy Law and Practice” Australian Law Reform Commission Report No. 108 released 11 August 2008, at paragraph 1.56. In DH6QO5 and Department of Police (Unreported, Queensland Information Commissioner, 29 June 2011), the Right to Information Commissioner found that images of third parties on government premises appearing in CCTV footage comprise personal information and are matters falling within an individual’s ‘personal sphere’, disclosure of which would unreasonably intrude upon this sphere, so as to justify refusal of access.
[38] In this regard I note and agree with the comments of Assistant Information Commissioner Corby in Young and Queensland Police Service (Unreported, Queensland Information Commissioner, 25 June 2013) at [20], observing that while there is a general expectation CCTV systems are likely to operate in public places, equally the community expects that footage these record will be used for limited purposes and not be liable to unrestricted dissemination.
[39] As stated in the 9 June 2013 submissions. The applicant in these submissions also states that he has a still photograph image of the Complainant, as derived from one of the building’s CCTV cameras.
[40] Noting that one camera clearly features the images of members of the public including children, individuals in relation to whom relevant privacy interests are not in any way diminished.
[41] Which, as continuous passages of moving image, will almost invariably disclose more detail than an isolated still photograph of the kind the applicant states is in his possession (see note 39).
[42] Including, in the event I am incorrect in finding they do not apply for the purposes of balancing the public interest, the factors discussed at paragraphs 15-18 of these reasons, none of which I consider would be significantly advanced by the disclosure of information which in the main merely parallels the applicant’s own eyewitness account.
[43] Which is embodied not only in the personal information and privacy public interest harm and nondisclosure factors discussed in these reasons, but in, for example, restrictions on Disclosure Log publication embodied in section 78(3) and 78B(2)(c) of the RTI Act, and is implicit in the Parliament’s very passage of the IP Act.
[44] Sections 47(3)(b) and 49 of the RTI Act.
[45] And, as regards privacy considerations, my earlier letters dated 31 May and 5 July 2013.
[46] At paragraph 34.
[47] Submission dated 21 August 2013.
[48]The Department located 908 pages and 13 CCTV recordings. It refused access to some pages and parts of pages and the CCTV recordings on the basis that their disclosure would, on balance, be contrary to the public interest. The Department granted the applicant full access to 451 pages and partial access to 221 pages. It refused access to 159 full pages, 221 part pages and the 13 CCTV recordings on the basis their disclosure would, on balance, be contrary to the public interest; and refused access to 77 pages on the basis they were subject to legal professional privilege.
[49] OIC’s letter dated 31 May 2013 conveyed to the applicant an initial preliminary view on the issues arising in the review, canvassing the bulk of the information to which he had been refused access; his submissions in response addressed only the Recordings. OIC’s letter dated 5 July 2013 informed the applicant that as his submissions were confined to the Recordings only, unless advised to the contrary, OIC would proceed on the basis that he did not wish to continue to pursue access to the balance of information to which he was refused access, and that the Recordings were all that remained in issue in this review. The applicant did not challenge this.