Case note number: 03/2012
Privacy principles: Information Privacy Principle 10 – Limits on use of personal information
The Complainant was reported as a missing person by their family. To assist the Agency’s investigation into this matter, a photograph of the Complainant was provided to the Agency. The photograph was of the Complainant at a social function.
At a later time, criminal proceedings were instituted against the Complainant. The same photograph which was obtained by the Agency for the missing persons matter appeared on the court brief in relation to the criminal matter. The inclusion of photographs in court briefs is to aid the identification of individuals.
The Complainant was aggrieved that a photograph of them which they associated with a happy time in their life was being used for this purpose. The Complainant alleged that the use of their image in the court brief was a secondary use of their personal information which was not authorised in accordance with Information Privacy Principle (IPP) 10.
The complaint satisfied all the criteria in section 166 of the Information Privacy Act 2009 for making a privacy complaint to the Office of the Information Commissioner. The Acting Privacy Commissioner accepted the complaint and advised the Complainant and the Agency.
The alleged breach of the privacy principles
It was not in dispute that the use of the Complainant’s image for the court brief was a secondary use of the Complainant’s personal information. At issue was whether or not the secondary use came within IPP 10(1)(e) – that is, a ‘reasonably necessary use’ by or for a law enforcement agency.
It was also not in dispute that the Agency had used the Complainant’s personal information for the prosecution of a criminal offence – IPP 10(1)(e)(i). The Complainant’s argument was that the use of this particular image in this way was not ‘necessary’ because a separate statutory procedure existed for obtaining ‘identifying particulars’ including photographs.
The mediation process
The Agency explained that its case management system automatically populated court briefs with the most recent photograph available on the system and this is what occurred in the Complainant’s case. Although the legislative process for obtaining identifying particulars was later followed and a fresh photograph was taken of the Complainant, this did not occur until after the court brief had been prepared and printed.
The Complainant sought that the photograph be removed from the Agency’s case management system in connection with the criminal matter. The Agency agreed to this, and the complaint was resolved on this basis. Adjustments were also made to the Agency’s case management system so that the automatic population of photographs into court briefs no longer occurred.