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Wednesday, March 15, 2006

Privacy problem for the not so happy snaps

The pitfalls that can arise for agencies subject to the Privacy and Personal Information Protection Act (PPIPA) are illustrated by the decision this week by the NSW ADT in SW v Forests NSW (2006) NSWADT 74.

The agency was found to have breached collection, use and disclosure principles following the taking of photographs by a departmental officer. The photographs were of a representative of a community organisation who had accompanied him to make a presentation to a public meeting in Victoria.

The Tribunal accepted that the person concerned had not consented to the taking of photographs out of the work environment which showed her in “morning attire” at the shared accommodation where the party stayed. Copies of a CD containing the photographs had been subsequently given to her and other participants on the trip.

Important issues about this decision are that an agency is responsible for action taken by an officer in the course of employment – in this case attending a meeting in Victoria; taking photographs using an office camera may be a breach of privacy principles where the “collection” is not for a lawful purpose related to function or activity of the agency; a photograph that did not represent the subject in her “professional capacity” breached the data quality principle in Section 16; and disclosure, even limited to other participants in the trip, was sufficient to constitute a breach of Section 18.

The Tribunal refused an application for damages (on the basis there was no causal connection between the breach and any damage suffered) and for costs.

The orders made included that Forests NSW review its privacy policy, implement necessary changes and ensure appropriate staff training

It will be a major and ongoing task to ensure that every public sector employee is aware of the consequences that can arise for the agency as a result of conduct in the performance of official functions which involve collection, use or disclosure of personal or health contrary to privacy principles.

The situation is not helped by complex laws and the thin nature of official guidance in most agencies about what the law means. It might be difficult however to contemplate every scenario in advance, as this case illustrates.

The full text of this decision appeared briefly on the ADT website on 14 March, was withdrawn, and subsequently reposted with some parts of the original decision deleted because of a suppression order.

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