Caripis v Victoria Police

Caripis v Victoria Police - [2012] VCAT 1472 - VCAT 2012 case summary — Zoe

[6]

The Complainant Ms Caripis is a member of the Switch Off Hazelwood collective which organized the protest on 10 October 2010.
The protest was endorsed by a number of environment groups and formed part of an "International Day of Climate Action" which had been organised by the international organisation 350.0rg.
The Collective (according to an extract from its newsletter attached to Ms Caripis' statement) advertised the protest to its members including the following words "There'll be a professional photographer provided by 350.0rg to get some shots of our action and send them out around the world,..." This paragraph followed one describing the plan for a demonstration of a "human solar thermal power station". Similarly, the material from Friends of the Earth said "Photo Opportunity: Hundreds of protesters each using large home-made reflectors will focus the light of clean energy on a ten meter power tower" and "Photos and videos from thousands of simultaneous events across the planet will be available for the media at 350.0rg/media".
The evidence from both parties was that the protest was a peaceful and good-natured event with no unlawful activity and no arrests. Senior Sergeant Watson's uncontested evidence was that three police officers took a total of 70 minutes video footage and seven still photographs. In addition, 124 minutes of aerial video footage was taken from a police helicopter. All this footage is retained by Victoria Police.
It was not in dispute that no other information was collected about Ms Caripis. But for her bringing this proceeding, the Respondent has no record connecting the images with her name or any other personal information concerning her. The Respondent's evidence (given by Senior Sergeant Watson) was that the footage is held on a disk in a locked cupboard at the "Morwell Crime Desk".
Ms Caripis appears in four segments of the ground level video footage. The total time when her image is visible is less than 20 seconds. I watched the four short segments which were produced by the Respondent. In one of them, while someone who knows Ms Caripis and is looking for her might recognise her figure, her face is not identifiable. In another, half of her face appears in profile for perhaps less than one second as the camera pans across a group. In a third, the camera pans across faces directly in front of it and Ms Caripis waves at the camera and appears to speak. In the fourth, the camera seems to zoom in on a group near Ms Caripis, but not on her directly although again her face is clearly visible for a few seconds.

[31]

When asked about her statement that the footage was only "potentially useful" intelligence, she said it may be relevant in future to know who attended so as to observe "who is with who, who is part of which group". Sergeant Watson also said (in his statement dated 15 June 2012) that the footage "could potentially provide insights and ...could be useful in identifying protesters who engage in unlawful activity in future protests". In re-examination he added that footage such as this helps to identify the tactics used by particular persons and groups.
There was no evidence about how mere images which are not accompanied by any information about the names of the persons depicted could be used as intelligence. Superintendent Walsh said that assessment of the intelligence value of information is not her area of expertise and she did not know whether it had been examined by the group of officers who have responsibility for assessing intelligence and she did not know why they were not giving evidence. She said that risk assessment is within her area of responsibility. She added that even footage of a peaceful protest is relevant to risk assessment but that the footage had not so far been examined for the purposes of risk assessment. The Superintendent also said "the climate in which I work is so affected by climate change that all information is potentially relevant".
Considering all the evidence and given the context in which the footage was collected and the likelihood of other protests in the Latrobe Valley, I was satisfied that the Respondent needs to retain the footage for the purposes of intelligence, in the sense that it may be useful in future. There was no evidence that the Respondent has any particular interest in retaining the images of Ms Caripis herself any more than any other person in the crowd.
Both Superintendent Walsh and Senior Sergeant Watson gave evidence that the footage was being retained for review of the police management of the 2010 protest and planning for future protests and "briefing members before similar protests". Superintendent Walsh said in her statement that the footage was retained "for briefing purposes in the event of future protests at Hazelwood and other power stations. I am very confident that there will be further climate change protest activity in the Latrobe Valley, focusing on coal fired power stations. The footage will be of use to Victoria Police in preparing for and responding to those protests".
Superintendent Walsh said that footage of the 2009 mass protest had been used in the briefing and planning session which prepared police for the 2010 protest. She said this was invaluable to her in learning about the site in a fuller way than mere aerial shots of the protest would do. She said that even footage of people standing around (as shown in the segments where Ms Caripis appears) could be useful to show how a peaceful protest looks. She agreed it would be possible to have a briefing for police without such segments, but maintained that all information was potentially useful in preparing for other protests.
Superintendent Walsh and Senior Sergeant Watson have prepared and participated in such planning and briefing in the past, so their evidence about the usefulness of the footage was highly relevant. Superintendent Walsh said that viewing footage of a previous protest taken at ground level helped her to become familiar with the site and the way the crowd moved. I was satisfied in the light of this evidence that the footage is needed for the purpose of planning for future protests and briefing police in preparation for those protests. It is not needed in the sense of being absolutely essential, but needed in the sense that it is reasonably required for that purpose and will be useful for that purpose.
Senior Sergeant Watson said in his statement that the footage was being retained in case a complaint is made about police conduct at the protest. He agreed in cross examination that it is only remotely possible anyone will now complain about police conduct. At this point, almost two years after the event, it is indeed unlikely that a complaint will be made and I was not satisfied that the footage is now needed for this purpose.
The Complainant contended that the Respondent's reasons for retaining the footage have changed over time and referred to correspondence from Senior Sergeant Watson following the protest. I accepted the evidence of Senior Sergeant Watson that the reasons have not changed over time. He said that his reasons for not mentioning the use of the information for planning and intelligence purposes in his correspondence with the Complainant and those representing her was that he was addressing only the issues raised in their correspondence and I accepted that evidence. He had not been asked to set out all the reasons why the Respondent was retaining the images.
Both of the respondent's witnesses gave as a further reason for retaining the footage the need to comply with the Public Records Act 1973. I will return to that issue.

[41]

Further, it is possible to read the decision of the High Court in Momcilovic as indicating that a majority of the Court were of the view that section 7(2) is part of the interpretative task required by section 32. Ultimately however, it was unnecessary for me to decide which of these two approaches the Tribunal should take in applying section 32 to interpret IPP 4.2. An examination of the jurisprudence about the relevant rights indicated that section 7(2) had no part to play because the ordinary meaning of IPP 4.2 was compatible with the relevant rights.
The ordinary meaning of IPP 4.2 is to be arrived at by construing it in the light of the language and purpose of the statute, applying the relevant canons of statutory construction. This was explained in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [69] and [78].
There was nothing in the IP Act itself and I was not referred to any canon of construction (other section 32) which indicated that "needed" should be narrowly read as "indispensable". The ordinary meaning of "needed" is that the item in question is "useful" or "required" not that it is indispensable. A person may be said to need a meal but still be able to survive without one.
The ordinary meaning of "any purpose" must also be established by reference to the context where it occurs. The IP Act does not require that the purpose for retention in IPP 4.2 be the same as or related to the primary purposes of collection. This is clear by comparing IPP 4.2 to IPP 2.1(a). The latter permits the use and disclosure of personal information for a secondary purpose only if it is related to the primary purpose of collection and is to be reasonably expected. No such constraint is put upon the retention of collected information. As the Respondent's counsel submitted, this interpretation is consistent with the Privacy Commissioner's Guidelines to the Information Privacy Principles, Edition 3, November 2011, [4-92] - [4-94].
The Respondent suggested that consistent with the scope, purpose and subject matter of the IP Act, the term "any purpose" for retention in IPP 4.2 should be limited only to the primary purpose of collection and purposes for which personal information may be used or disclosed, as set out in IPP 2.1. I agree that is the most coherent way to read the legislation. The purposes in IPP 2.1 include the following:

[65]

The seriousness of the threat to privacy and the reasonableness of expecting privacy in the circumstances are relevant in the present case. The Complainant agreed in cross-examination that many people took photographs of the 2010 protest and uploaded them to social media and that there is still an extensive gallery on the website "Flickr". She said she had not checked whether her image appeared amongst them. She agreed also that while she was surprised by the number of police at the protest she was not surprised that media and police took film and photographs of the event. This, together with her knowledge that others could retain and publish the photographs (obvious from her familiarity with the advertisements about the protest) and her knowledge that 350.0rg intended to publish photographs, indicate that the Complainant could not have had a reasonable expectation of privacy in relation to the taking, publication or retention of photographs.
Further, the facts that the segments containing images of the Complainant do not focus on her, that her face is only identifiable in two very short segments (out of 70 minutes) panning across the crowd and that no other information about her, not even her name, was recorded or retained, indicate that the retention of photographs in this case lacks the level of seriousness which would engage her right to privacy. The circumstances were such that the taking of photographs was to be expected, was even encouraged and the evidence is that many were taken and a number of images from the event, depicting members of the crowd, possibly even the Complainant, are still publicly displayed.
In Catt v The Commissioner of Police of the Metropolis [2012] EWHC 147, Mr Catt complained about the collection and retention of data concerning his attendance at various protests. He was 87 years old and of good character. However, he was closely associated with a group called "Smash EDO" which was campaigning against a US arms trading company and had been responsible for "serious persistent criminality and posing a significant public order problem" (para 64).
Gross LJ analysed the situation in the terms set out above by Laws LJ in Wood and decided that the compilation and retention of reports about Mr Catt's very public activities did not engage (or infringe) his right to privacy.
The Complainant's counsel sought to distinguish Catt from the present case, emphasising that it was the existence of the Smash EDO campaign which most influenced that decision. My reading of the decision of Gross LJ (see 39 to 46) was that the public nature of Mr Catt's activities was also important in leading to the conclusion that his right to privacy was not affected by the gathering and retention of information about him.
The present case does not involve an ongoing organised campaign like "Smash EDO". However, it does involve an identifiable place or set of places (the brown coal power stations in the Latrobe Valley, of which Hazelwood is one) and the strong likelihood of further protests there. Hazelwood has been the subject of protests in the past and is likely to be so again, according to the evidence of Superintendent Walsh and Senor Sergeant Watson - neither of which I had any reason to doubt.
Accordingly, the circumstances in this case are more like those in Catt than those in Wood, so that retention of the images of the Complainant authorised (or rather not prohibited) by IPP 4.2 in its ordinary meaning, and for the purposes which I have found fall within that meaning, remains consistent with her right to privacy.

[66]

It was submitted for the Complainant that the right to participate in a peaceful non-violent protest exemplifies the rights to freedom of expression (section 15 of the Charter) and peaceful assembly (section16). That seems absolutely correct to me.
Ms Caripis's evidence was that while she continues to engage in activities like the Hazelwood protest and has attended 6 or 7 rallies since then, she has been conscious of people taking photographs and has made an effort to avoid being photographed. She is more conscious of where she stands and considers her privacy now when she attends such events. She is concerned and unsettled by the retention of images of her.
Ms Caripis's counsel referred to Segerstedt-Wiberg and Ors v Sweden [2006] ECHR 597 in which the storage of personal data about affiliations and activities was held to be an interference with the rights to freedom of expression and peaceful assembly. That case concerned the extensive collection of data over many years and (by definition) the data included the names of the persons concerned. This case is very different. Without the present proceeding, the Respondent would have no means of putting the Complainant's name to the face on the footage. I accepted the Complainant's evidence that she has been made more self-conscious by knowing that the police retain images of her, but I was satisfied this knowledge has not prevented her from participating in similar protest events.
Ms Caripis's counsel referred to the chilling effect which public surveillance and particularly police surveillance has been held to have on the exercise of the rights to freedom of expression and peaceful assembly.
Ms Caripis said in her statement that she was disturbed by the Respondent's suggestion that the footage is required for "intelligence" purposes in case of future protests. While the footage taken that day includes her, there are only brief glimpses in 70 minutes of footage so I was not persuaded in the circumstances that the Complainant had any reasonable grounds for feeling that the Respondent is focussed on her or her activities.
In United Macedonian Organisation Ilinden v Bulgaria (No2) [2011] ECHR 1723, a "chilling effect" was described in relation to bans and restrictions on the conduct of rallies and arrests and seizure of materials at those rallies. These acts of the authorities did not impede the holding of protests, but had a chilling effect on them. I was not persuaded that Ms Caripis's increased self-consciousness was like that chilling effect. It was not clear to me that the retention of images of her has changed the way she exercises her rights. What she described was more like a change in the way she feels about exercising her rights.
In Wood, the chilling effect on the exercise of lawful rights was described in relation to the deployment of police and their intrusive behaviour in following and questioning Mr Wood (at 92). In the present case, it is the retention rather than the taking of photographs which is complained of and I was not persuaded that the cases are so similar that I ought to see the retention of the images as having the same sort of chilling effect.
In summary, I was not persuaded that retention of the images, in circumstances where many photographs were taken by all sorts of people that day, where some of those still appear on public websites and where the Respondent has no other data about the Complainant, not even her name, was inconsistent with the exercise of her rights to freedom of expression and peaceful assembly.
Therefore, within the ordinary meaning of IPP4.2, consistent with its purpose and interpreting it in the light of the relevant human rights, IPP 4.2 is compatible with those rights. That ordinary meaning allows the Respondent to retain the images for the purposes it has claimed, since they fall within IPP 2.1.

[77]

Senior Sergeant Watson, in his letter of 17 November 2010 to the Complainant's representatives, mentioned PROS 05/02 and referred apparently to class 1.3.5, mentioning the need to retain unedited recordings for 3 months after administrative use was concluded.
The Complainant contended that PROS 1.1.6 must apply to the protest footage because (amongst other things) it corresponds to 1.3.5 and the letter had relied on it. Senior Sergeant Watson 's later letter of 24 January 2011 (which followed the establishment of PROS 10/14), again replying to the Complainant's representatives, mentioned that no decision had been made about the use of the footage and also referred to PROS 10/14, indicating that the records could be retained for seven years.
The Respondent's position in this proceeding is not confined to that taken by Senior Sergeant Watson in his letters. The Respondent is not confined to reliance on 1.3.5 or its equivalent or to the unspecified class in PROS 10/14 mentioned in the Sergeant's later letter. The question for the Tribunal is whether any class in PROS 10/14 which would permit disposal or alteration of the records applies to the footage.
According to Senior Sergeant Watson's evidence, the footage was collected for the following purposes: as evidence in the event of charges of unlawful activity; as evidence in the event of a complaint against police; to review the police response and for use in future planning and briefing and as intelligence. As I have already said, I accepted that evidence despite the fact that the last two purposes listed had not been included in the letters to the Complainants representatives in 2010 and 2011.
The protest footage does not fall within the description in 1.1.6 because it was not gathered during the investigation of a crime but only for use in case a crime was committed - which did not occur. I note that the wording of PROS 05/02 class 1.3.5 may well have covered this footage, but 1.1.6 does not. It is not open to the Tribunal to alter the plain meaning of the words.
Victoria Police contended that the footage was described by 1.8.5 or 1.8.6. Each of those classes refers to "records documenting assessment" of threat in relation to public order, an event or a planned protest.
Superintendent Walsh gave evidence that she considered the footage documented assessments. However, that is her opinion and she is not an expert in the classification of documents. Looking at the plain meaning of the words, video footage of the event is not an assessment in my view. That word implies some weighing and consideration of material, whereas the footage is itself the raw material which may need to be assessed. While it may be useful in conducting an assessment of threat, it is not itself an assessment. That is the plain meaning of the words. Even taking section 32 of the Charter in to account, the Tribunal has no power to change the effect of that plain meaning.
Of all the classes of documents referred to by the parties, class 10.2.1 best describes the protest footage. It is a record of part of the "planned police response" to the protest. It depicts the deployment of police.
If the protest footage does not fall within any class of document described in PROS 10/14 or some other standard set under section 12 of the Public Records Act, then there is no authority for it to be disposed of or destroyed and section 19 would apply to prohibit any such action. In my view however, class 10.2.1 applies. That is the plain meaning of the words as I read them. Accordingly the only authority given to the Respondent to dispose of or alter the records is the standard in class 10.2.1, which permits disposal after 7 years. The requirements of the Public Records Act 1973 prevail over IPP 4.2, but even if they did not, IPP 4.2 does not require the destruction or alteration of the protest footage, as I have already found.

At a glance

Court

Decision date

Source

Judgment (86 paragraphs)

Caripis v Victoria Police (Health and Privacy) [2012] VCAT 1472 (27 September 2012)

Parties

Legislation Cited (3)

Cases Cited (2)