Police facing enforcement action over photographing people

Source: Radio New Zealand

Police are facing enforcement action from the Privacy Commissioner for breaches of obligations in relation to officers photographing people.

A police car (file).

By Hamish Cardwell of rnz.co.nz

RNZ revealed in December 2020 that officers in Wairarapa were unlawfully taking pictures of young Māori.

Subsequent reporting by 1News' Te Aniwa Hurihanganui, who was working at RNZ at the time, suggests the practice is more widespread.

The findings of an inquiry by police and privacy watchdogs into the matter were expected much earlier this year, and will come some time this month.

In the meantime, RNZ asked the police and the Office of the Privacy Commissioner (OPC) if the Commissioner has issued a compliance notice, or some other form of statutory measure.

Yesterday evening the police admitted the OPC had done so in December last year.

In a statement, Deputy Commissioner Jevon McSkimming said in late 2020 the police became aware of the issue in Wairarapa and started work to improve practices in relation to the capture and storage of youth photos.

Nevertheless, a year later the OPC issued police with a compliance notice.

"Work related to the notice was already underway and will continue to be shaped in consultation with the office," McSkimming said.

In response to RNZ's questions about whether an order had been issued the OPC refused to say, stating it was unable to comment at this time.

"We are in the final stages of preparing our joint report with the IPCA for publication, which includes statutory consultation with the police. We anticipate the report will be released later this month.

"Out of respect for all the people affected by this issue, and to allow our findings to be viewed in full context, we will wait until our full report is available before providing further comment."

What is a compliance notice?

A compliance notice can be issued if the commissioner believes there has been a breach of the Privacy Act or a code of practice, or if privacy systems are inadequate.

It requires the agency to remedy the breach, and if it does not comply it can bring enforcement proceedings at the Human Rights Review Tribunal.

Failure to comply with a tribunal order is an offence, and if prosecuted, the agency could be fined.

The Commissioner can decide whether it is in the public interest to publish details about a compliance notice including the identity of the agency concerned.

Inquiry report out 'before the end of the month'

The joint investigation by the two watchdogs and an internal police investigation were launched after RNZ's reporting and the results were initially expected by the end of last year.

The Independent Police Conduct Authority and the Privacy Commission have been looking into police practice relating to people being photographed (not just young people) who have not been detained or suspected of committing an offence.

The IPCA said yesterday it anticipated the report will be released before the end of the month.

It said the joint investigation's draft report has been sent to police for comment as per statutory obligations.

"Following consideration of any police submissions we will be finalising and releasing the report."

The police's own internal report has been finished and has been sitting with the IPCA and the Privacy Commission since late January.

In the meantime, the police have tightened the rules for officers photographing young people.

Further incidents prompted a broader watchdog inquiry

The IPCA and OPC's inquiry, announced in December 2020, was initially looking at the practice of photographing young people, but its scope was subsequently broadened to include all members of the public.

In March 2021 the watchdogs said the police had told them not long after they started their investigation that there had been a similar situation in Whanganui in 2014 where officers were photographing young Māori.

The watchdogs also described another incident in Northland in 2019 where officers illegally detained a woman and breached her privacy by photographing her and her partner at a checkpoint.

Police also admitted to RNZ that for years they had unlawfully been using road blocks to gather intelligence.

Police said officers were acting with the best of intentions and did not know it was unlawful.

However, a year before the Northland incident the IPCA told police that the use of Land Transport Act traffic stops for intelligence gathering purposes was unlawful.