Lights, camera, pixelation! Pixelation of video footage requested under freedom of information legislation

Key Point
  • In a recent decision the Civil and Administrative Tribunal found that pixelating the face, head, neck and any other identifying marks (such as tattoos) of persons captured on video footage requested under the Government Information (Public Access) Act 2009 (NSW) may overcome public interest concerns and allow for the disclosure of such information.

To promote open discussions, government accountability, and contribute to positive and informed debates on issues of public importance, members of the public have a right to access government information under the Government Information (Public Access) Act 2009 (NSW). The right is not incontestable and may be restricted where there is an overriding public interest against the disclosure of the information in question.

In the recent matter of Seven Network Limited v South Eastern Sydney Local Health District [2017] NSWCATAD 210, the Civil and Administrative Tribunal (Tribunal) was asked to determine whether the disclosure of CCTV footage depicting assaults on hospital staff by members of the public and patients was in the public interest.

The information in dispute comprised CCTV footage of three incidents of assault occurring at the Local Health District (LHD). One of the incidents occurred in a Safe Assessment Room in an Emergency Department and involved a Doctor and patient (Footage 1). The other two incidents occurred in front of the public access entrances of two hospitals and involved members of the public and hospital security personnel (Footages 2 & 3).

The LHD initially declined the requests.  Subsequently, the Information Commissioner asked the LHD to consider whether it was able to redact information from the CCTV footage through pixilation.  The LHD determined that there was an overriding public interest against disclosure for the reasons set out below.

The LHD refused to produce the CCTV footage on the basis that to do so could reasonably be expected to:

  • result in the disclosure of personal information;
  • result in the disclosure of health information;
  • expose hospital staff and members of the public to a risk of harm, serious harassment or intimidation; and
  • prejudice the effective exercise of the LHD’s functions by: a) discouraging patients from seeking medical treatment, particularly where mental illness is a factor, and b) undermine the assessment of patients who present to emergency departments with potential mental health issues.

Seven Network Limited (7Network) submitted that the LHD’s concerns could be addressed by pixelating the faces, heads, necks and any other identifying markings (such as tattoos.)
The Tribunal accepted 7Network’s submission with respect to Footages 2 & 3 but refused access to Footage 1 on the basis that granting 7Network access to Footage 1 could reasonably be expected to prejudice the effective exercise of the LHD’s functions.

In coming to its decision the Tribunal held that a patient being interviewed by a health professional within a Safe Assessment Room is entitled to expect that their interactions will remain confidential and that the public broadcast of such footage would diminish patients’ confidence in the confidentiality of their treatment and their interactions with healthcare professionals. The Tribunal further held that the release of such information would create a risk that patients would be deterred from seeking medical treatment, particularly where mental illness was a factor. This would be the case even if the footage was broadcast with identifying features being pixelated so that no identification was possible. In such circumstances identification of the contextual surroundings would be enough to enable patients to recall the incident.

As to the question of who should pixelate the footage, the Tribunal held that it was neither possible nor appropriate to provide 7Network with access to the raw footage. The only option for the achievement of pixelation would be for the LHD to employ a third party to undertake the pixelation. 7Network offered to cover the cost of the process.

Post by Vanja Simic and John Kell 

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