Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Seven Network Limited v South Eastern Sydney Local Health District [2017] NSWCATAD 210 Hearing dates: 20 March 2017 Date of orders: 27 June 2017 Decision date: 27 June 2017 Jurisdiction: Administrative and Equal Opportunity Division Before: DAC Robertson, Senior Member Decision: (1) Affirm the decision to refuse to provide access to the video footage identified as Footage 1 being footage recorded by CCTV cameras in and outside a Safe Assessment Room. (2) Set aside the decision to refuse to provide access to the video footage identified as Footage 2 and Footage 3. (3) In place of the decision to refuse to provide access to Footage 2 and Footage 3, the decision is made that access is to be provided to Footage 2 and Footage 3 with the faces, heads, necks and any tattoos or other identifying marks of any person appearing in the footage concealed by pixelation. (4) Grant the parties liberty to apply by written notice to the registry in the event that any issue arises in relation to compliance with the above orders. Catchwords: Government Information (Public Access) – application for disclosure of CCTV footage of assaults on staff at hospitals – whether overriding public interest against disclosure – disclosure of personal information and health information – disclosure prejudicing the effective exercise of the agency's functions - whether pixelation of faces and identifying marks would avoid concerns – impact on operations of hospitals if footage recording treatment of patients was released. Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Government Information (Public Access) Act 2009 (NSW) Freedom of Information Act 1989 (NSW) Freedom of Information Act 1982 (Vic) Health Records and Information Privacy Act 2002 (NSW) Health Services Act 1997 (NSW) Privacy and Personal Information Protection Act 1988 (NSW) Cases Cited: Commissioner of Police, New South Wales Police Force v Camilleri [2012] NSWADTAP 19 Commissioner of Police v Field [2016] NSWCATAP 59 Hurst v Wagga Wagga City Council [2011] NSWADT 307 Director General, Department of Education and Training v Mullett & Anor (GD) [2002] NSWADTAP 13 Leech v Sydney Water Corporation [2010] NSWADT 298 Neary v State Rail Authority [1999] NSWADT 107 Office of Finance & Services v APV & APW [2014] NSWCATAP 88 Willner v City of Port Phillip (Review and Regulation) [2015] VCAT 1320 WL v Randwick City Council (GD) [2007] NSWADTAP 58 Category: Principal judgment Parties: Seven Network Limited (Applicant) South Eastern Sydney Local Health District (Respondent) Representation: Counsel: R A Jedrzejczyk (Applicant) S Palaniappan (Respondent) Solicitors: Johnson Winter & Slattery Lawyers (Applicant) NSW Crown Solicitor's Office (Respondent) File Number(s): 2016/00378393 REASONS FOR DECISION 1. 1 The applicant is a Freedom of Information editor for Seven Network (Operations) Ltd, a television broadcaster. The respondent is the Local Health District covering a number of local government areas in south eastern Sydney. 2. By letter dated 22 March 2016 the applicant made a request to the respondent pursuant to the Government Information (Public Access) Act 2009 (NSW) (GIPA Act) seeking "incident reports and video of assaults on security and staff at hospitals since July 1, 2014". 3. On or about 2 June 2016 the respondent provided its initial Notice of Decision in which the respondent recorded that it held information falling within the request, which for the purposes of considering the request it had separated into two parts: Part 1 being incident reports relating to assaults on security and staff at hospitals; Part 2 being video footage. 4. The respondent produced the incident reports with identifying information redacted but determined that the video footage would not be produced. 5. On 7 June 2016 the applicant made an application to the Information and Privacy Commissioner for a review of the respondent's decision. By a report dated 12 August 2016 the Information Commissioner recommended under s93 of the GIPA Act "that the agency make a new decision by way of internal review" in relation to the CCTV footage and suggested that "the agency should give consideration to whether it is able to redact information through pixelation or create a new record by removing sections of the CCTV footage". 6. By letter dated 26 August 2016 the respondent informed the applicant that it would conduct a review of the original decision. 7. By a Notice of Decision dated 29 September 2016 the respondent, by its Senior Investigator and Privacy Contact Officer, determined that there was an overriding public interest against disclosure of the information. The respondent's conclusion was: "The sensitivity of the information in the footage, in relation to health and personal information, and the associated effects of disclosure are significant. There is no ability to redact or pixelate footage was identified within this agency. In the event that this was achievable within the agency, pixelation or redaction, sufficient to remove personal information of persons within that footage, would render the footage meaningless. In my view the public interest considerations have also been satisfied by the disclosure of the documents already released to the Applicant. Disclosure of the footage would not appreciably advance those considerations." 1. By application filed on 5 October 2016 the applicant sought review of the decision to refuse access to the video footage pursuant to the Administrative Decisions Review Act 1997 (NSW). 2. In the course of the review of the initial decision the respondent had determined that the video footage of one incident was not covered by the applicant's access application. There was no challenge to that determination. 3. The hearing of the application took place on 20 March 2017. 4. The footage, which was tendered in evidence and became Confidential Exhibit H, is accurately described in the respondent's written submissions as follows: The information in dispute in the present proceedings comprises CCTV footage of three incidents of assault at [Hospital A] and [Hospital B]. CCTV footage of a fourth incident was determined by the respondent not to fall within the scope of the applicant's request, as it apparently recorded an assault against NSW ambulance staff and not an assault "on security and staff at hospitals". The applicant does not refer to this aspect of the decision in her application for review by the Tribunal. The first incident is recorded in two video clips, which show a male patient and doctor conversing in a Safe Assessment Room ("SAR", discussed further below) at the Emergency Department of [Hospital A] ("Footage 1"). Partway through their conversation, the patient rushes at the doctor and attempts to kick him. The doctor leaves the room and the patient follows. The patient is subdued by other staff. The second incident is recorded in a single video clip, which shows a male person, likely to be a patient, approaching the entrance to the Emergency Department at [Hospital A] ("Footage 2"). The man is approached by a security guard, and attempts to strike him. He is restrained by security staff until police officers arrive. Nurses and members of the public can also be seen in the footage. The third incident is recorded in a single video clip, showing a young man attempting to strike a security guard outside the Emergency Department at [Hospital B] ("Footage 3"). Two other members of the public are also visible in the footage along with other security guards, who restrain the young man and take him inside the Emergency Department. 1. I have redacted the names of the hospitals from the above passage. Although those names were disclosed to the applicant it does not appear necessary for the purposes of this decision to identify the hospitals. 2. Safe Assessment Rooms were described in the evidence and the respondent's submissions as follows: Multipurpose rooms that provide private spaces to manage a number of sensitive needs, such as for grieving relatives, to manage behaviourally disturbed patients, for patients requiring high-level observation and to undertake assessments of mental health patients. … A safe assessment room is a separate, secure room in the Emergency Department where mental health patients can safely stay while they are assessed and treated. Safe assessment rooms have a number of design features which reduce the chance of selfharm to the patient as well as offering safety to staff working with the patient, for example, two exit doors that swing outwards, minimal furnishings and no hanging points, an observation window, medical equipment is secured in a locked cupboard, the room may be sound-proofed, and there may be an access door for NSW Police or Ambulance officers to escort patients directly into the safe assessment room. … 1. I viewed the footage in the course of the hearing and several times subsequently. The Evidence 1. The applicant swore an affidavit, as did her solicitor, Mr Lynch. Those affidavits set out correspondence and background to the application including correspondence concerning the possibility of pixelating the footage (that is blurring parts of the footage) so as to prevent the identification of individuals appearing in the footage. For the purposes of these proceedings the significance of this evidence appears to be: 1. That the applicant and Channel 7 as her employer has offered to undertake the pixelation of the footage at its own cost, either by paying for a third party retained by the respondent to undertake that task or by undertaking that task itself and returning the unedited footage to the respondent. 2. The applicant proposes the pixelation of the face, head and neck only of persons appearing in the footage. 3. The respondent's position has been that the only way to prevent the persons appearing in the footage from potentially being identified or identifying themselves is the pixelation of "faces/head/torso and arms down to waist". That degree of pixelation was not acceptable to the applicant. 1. The respondent tendered copies of the incident report documents produced pursuant to the original request and the video footage itself (which as noted above was tendered on a confidential basis and not disclosed to the applicant). The respondent also led evidence from Dr Murray Wright, Chief Psychiatrist at the New South Wales Ministry of Health, expressing opinions about the potential impact of the release of the footage upon the patients shown in the footage, and Associate Professor Samuel Harvey of the Prince of Wales Hospital also addressing the potential impact of the release of the footage. 2. The respondent also relied upon two affidavits from Ms Larna Phillips, the respondent's Senior Investigation and Privacy Contact Officer who made the decision under review. Ms Phillips attached to her affidavits policies relating to the installation and operation of CCTV in emergency departments, including a policy titled "Protecting People and Property - New South Wales Health Policy and Standards for Security Risk Management in New South Wales Health Agencies", dated June 2013, and a reference guide for clinicians and other staff working at State emergency departments titled "Mental Health for Emergency Departments a Reference Guide". Ms Phillips also annexed to her affidavit photographs of signage at Hospital B. 3. The respondent tendered on a confidential basis a statement from Dr C, who was the doctor shown in Footage 1. A copy of that statement, redacted to conceal identifying information, had been provided to the applicant. A copy of the redacted statement was admitted without restriction, a copy of the unredacted statement was admitted on a confidential basis and not disclosed to the applicant. 4. Finally the respondent tendered a statement of Mr N, who was a security officer who appears in Footage 2 or Footage 3. Again a redacted version of this statement had been provided to the applicant and both a redacted version and an unredacted version were admitted into evidence, the unredacted version on a confidential basis. 5. Both Dr C and Mr N objected to release of the footage in which they appeared. 6. Mr N explained that he was concerned for his safety and the safety of his family, should the individual, seen in the footage attempting to strike security guards and being restrained, recognise himself and be motivated to "pursue some payback toward me or my other colleagues who were involved in the incident". 7. Dr C gave evidence orally and explained his concern about release of the footage in terms of his potential further relationship with the patient seen in the footage in which he appeared and the potential impact on the patient if he were to recognise himself in that footage. Dr C suggested that if the patient recognised himself in the footage, when broadcast, that might encourage a feeling of distrust in the system. In Dr C's view, should patients seeking assistance from an emergency department become aware that their interactions might subsequently be broadcast on the media, that might lead patients to be reluctant to seek help during acute episodes of psychological disturbance. In Dr C's view that might itself lead to a danger of harm to the patient. 8. The applicant objected to the evidence of Associate Professor Harvey insofar as Associate Professor Harvey expressed opinions concerning whether individuals could be recognised or recognise themselves from pixelated video footage. The applicant submitted that that evidence was not founded upon any particular expertise of Associate Professor Harvey arising by training, study or experience. I admitted the evidence although I consider there was some substance in the applicant's submission. Ultimately it will be for me, having viewed the footage, to reach a conclusion as to the extent to which the concerns expressed by the various witnesses for the respondent, about the possibility of recognition of individuals either by themselves or by other persons, are well-founded. The Relevant Statutory Provisions 1. The respondent's decision of 29 September 2016 not to release the CCTV footage is a reviewable decision within s 80(d) of the GIPA Act. 2. The respondent bears the burden of establishing that its decision is justified: GIPA Act, s 105(1). The task of the Tribunal is to decide what is the correct and preferable decision and in doing so, it may exercise all of the functions conferred or imposed by any relevant legislation on the administrator who made the decision on behalf of the respondent: Administrative Decisions Review Act s 63. 3. The objects of the GIPA Act are set out in s 3: 3 Object of Act (1) In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by: (a) authorising and encouraging the proactive public release of government information by agencies, and (b) giving members of the public an enforceable right to access government information, and (c) providing that access to government information is restricted only when there is an overriding public interest against disclosure. (2) It is the intention of Parliament: (a) that this Act be interpreted and applied so as to further the object of this Act, and (b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information. 1. Pursuant to s 5 of the GIPA Act, there is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure. Pursuant to s 9(1) of the GIPA Act a person making an application has a legally enforceable right to be provided with access to the information sought unless there is an overriding public interest against disclosure of the information. Pursuant to s 13 of the GIPA Act: There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure. 1. Section 12 of the GIPA Act provides: (1) There is a general public interest in favour of the disclosure of government information. (2) Nothing in this Act limits any other public interest considerations in favour of the disclosure of government information that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information. Note. The following are examples of public interest considerations in favour of disclosure of information: (a) disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance. (b) Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public. (c) Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds. (d) The information is personal information of the person to whom it is to be disclosed. (e) Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct. (3) The Information Commissioner can issue guidelines about public interest considerations in favour of the disclosure of government information, for the assistance of agencies. 1. The respondent acknowledges that paragraphs (a) and (b) of the note to sub-section 12(2) are applicable and relevant in the circumstances of this application. 2. The applicant submitted that the public interest considerations in favour of disclosure were "compelling" and "strong", submitting: There is no dispute that the issue of violence towards hospital staff is an issue that affects the wider public as users and employees of the health care system. It also bears directly upon the accountability of government and whether the increased rates of violence warrant urgent legislative and policy reform. Ms Sandy has deposed that, should she be granted access to the CCTV footage, Channel Seven intends broadly to broadcast the footage as a news item geared towards increasing public awareness of the scale of the problem and stimulating debate regarding the appropriate legislative and law enforcement response … This is not a case of an applicant seeking government information in order to satisfy their individual curiosity or to advance personal objectives such as the pursuit of litigation. The public interest elements of the applicant's access application are entirely consistent with the considerations set out in s 12 of the GIPA Act and weigh strongly in favour of requiring disclosure of the CTV footage. 1. Schedule 1 to the GIPA Act identifies information in respect of which there is conclusively presumed to be an overriding public interest against disclosure. It is not suggested by the respondent that any provision of Schedule 1 is applicable in this case. 2. The only other public interest considerations against disclosure which may be taken into account are those set out in the table to section 14 of the GIPA Act. 3. The respondent in refusing access to the video footage identified five public interest considerations included in the table to section 14 of the GIPA Act as being "engaged in the present case". These were: (a) disclosure of the information could reasonably be expected to have the effect of revealing a person's personal information (Item 3(a) in the Table to s14); (b) disclosure of the information could reasonably be expected to contravene an information protection principle under the Privacy and Personal Information Protection Act 1988 (NSW) ("PPIP Act") or a Health Privacy Principle ("HPP") under the Health Records and Information Privacy Act 2002 (NSW) ("HRIP Act") (Item 3(b)); (c) disclosure of the information could reasonably be expected to expose a person to a risk of harm, serious harassment or serious intimidation (Item 3(f)); (d) disclosure of the information could reasonably be expected to prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions (Item 1(d)); and (e) disclosure of the information could reasonably be expected to prejudice the effective exercise by an agency of the agency's functions (Item 1(f)). 1. Each of the public interest considerations against disclosure referred to includes the requirement that the disclosure "could reasonably be expected to" have the nominated effect. In Hurst v Wagga Wagga City Council [2011] NSWADT 307 a Judicial Member of the Administrative Decisions Tribunal stated (at [56] to [58]): "56. …The words "could reasonably be expected to" have been the subject of considerable judicial consideration with respect to their use in the Freedom of Information Act 1989 and the Freedom of Information Act 1982 (Cth). They are to be given their ordinary meaning: Attorney-General's Department v Cockcroft (1986) 10 FCR 180. In that case, Bowen CJ and Beaumont J explained, at 190, that the words – "... require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that those who would otherwise supply information of the prescribed kind to the agency would decline to do so if the document in question were disclosed under the Act. It is undesirable to attempt any paraphrase of these words. In particular it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like." 57. Hayne J pointed out in McKinnon v Secretary, Department of Treasury [2006] HCA 45 that , at [61] – "... when their Honours said, as they did, that the words required a "judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous," to expect certain consequences, they are not to be understood as having used the latter expression as a paraphrase of the former. Rather, they are to be understood, and have since been understood, as doing no more than drawing an emphatic comparison. To do more would have been, as their Honours correctly said, "to place an unwarranted gloss upon the relatively plain words of the Act". And the same approach should be taken to the expression "reasonable grounds" when it is used in s 58(5) of the Act." See also XZ v Commissioner of Police, NSW Police Force [2009] NSWADTAP 2. 58. It is necessary for Council to demonstrate, with respect to each public interest consideration against disclosure upon which it relies, that disclosure could reasonably be expected to have the nominated effect." 1. In Neary v State Rail Authority [1999] NSWADT 107 Judge O'Connor, President of the Administrative Decisions Tribunal, held: 35. An objective view must be brought to bear on an agency's claim that release will have an adverse impact on its financial affairs. The Tribunal should approach issue from the viewpoint of a reasonable administrator. The administrator should have reasonable grounds for his or her perception. There must be more than a mere risk. While the key word used in the relevant provision - 'expect' - carries a firmer connotation than words such as 'anticipates', it is not necessary that the level of risk be such that it be assessed as more probable than not. Nor is it necessary for the administrator to apply a balance of probabilities calculus similar to that used to set the burden of proof in litigation. All relevant factors, including public interest considerations, should be taken into account. The extent and nature of the effect will be relevant, and often decisive. It is necessary to assess what is reasonable in the circumstances. 1. In Leech v Sydney Water Corporation [2010] NSWADT 298 a Judicial Member of the Administrative Decisions Tribunal held (at [25]): 25. The term 'could reasonably be expected' has been considered in a number of cases. The words have their ordinary meaning: Searle Australia Pty Ltd v PIAC (1992) 108 ALR 163. The test to be applied is an objective one, approached from the view point of the reasonable decision-maker: Neary v State Rail Authority. Something which could reasonably be expected is something which is more than a mere possibility, risk or a chance. It must be based on real and substantial grounds, and it must not be purely speculative, fanciful, imaginary or contrived: Searle Australia Pty Ltd v PIAC.' 1. I will address each of the public interest considerations relied upon by the respondent in turn before turning to address the balance of public interest considerations required by s13 of the GIPA Act. Revealing personal information (Item 3(a)) 1. The respondent submitted that the CCTV footage, the subject of these proceedings contains the "personal information" of "several hospital staff, police, patients and members of the public." 2. 'Personal information' is defined by clause 4 of Schedule 4 to the GIPA Act to mean: information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual (whether living or dead) whose identity is apparent or can reasonably be ascertained from the information or opinion'. 1. To 'reveal information' is defined by Clause 1 of Schedule 4 to the GIPA Act to mean: to disclose information that has not already been publicly disclosed (otherwise than by unlawful disclosure). 1. The respondent submitted: Putting to one side the question of pixelation or redaction, the identities of the persons involved in these incidents are 'apparent or can reasonably be ascertained' from the information. In most cases, the quality of the footage is such that faces are visible, so that the identity of individuals is 'apparent'. In some cases, the footage is of poorer quality, so that the identity of individuals may not be immediately apparent to strangers. 1. I accept that, if the persons appearing in the footage can be identified, the footage would constitute "personal information" of those persons. If the persons appearing in the footage cannot be identified, the footage will not constitute personal information. 2. The respondent submitted that, even where the footage does not enable identification from facial features alone, "other identifying features in the footage which are not obscured, include the person's likely gender, body shape, height, hair style, skin colour, gait, and clothing (including uniforms…) are sufficient on their own to permit identification." 3. The respondent further submitted that there were contextual factors, including: (a) the specific location of the incidents recorded by the footage, being within or outside two specific hospitals in Sydney; (b) the time and date of the incidents; and (c) the nature of the behaviour recorded in the CCTV footage." which in combination with the identifying features in the footage, mean that the identity of persons appearing in the footage can "reasonably be ascertained". (See Office of Finance & Services v APV & APW [2014] NSWCATAP 88 at [56] and WL v Randwick City Council (GD) [2007] NSWADTAP 58 at [15]). 1. The respondent noted that "a number of staff appearing in the footage objected to its disclosure on the basis of, among other things, serious concerns about their personal safety" and relied in particular on the statements of Dr C and Mr N. The respondent submitted that "the risk of disclosing a person's personal information is a weighty consideration in the balancing exercise required by s13 of the GIPA Act". 2. The respondent also submitted that "the sensitivity of the incidents recorded on the CCTV footage lent additional weight to this consideration". 3. The applicant submitted in response that the respondent's concerns regarding the identification of persons appearing in the footage could be addressed by the pixelation of "faces, heads and necks" of the persons depicted. 4. The applicant submitted that the respondent had not established, beyond "speculation and generalities", that, in circumstances where the faces, heads and necks of those appearing in the footage had been pixelated, the other features of those persons which remained visible such as their clothing and general body shape, would permit identification. 5. In response to the respondent's submission that contextual factors including the incident reports which had been released by the respondent, might enable identification of the individuals appearing in the footage, the applicant submitted: That submission should be afforded little weight in light of the respondent's concession that 'the information in the incident reports differs from the information in the CCTV footage'. Given that fact, it is perhaps unsurprising there is no evidence that anyone with access to both sets of information has succeeded in 'marrying up' the incident reports to the CCTV footage. 1. In relation to the concern expressed by persons appearing in the footage, including Dr C and Mr N, regarding the impact of the disclosure on their personal safety, the applicant submitted: The applicant makes no criticism of these witnesses' legitimate concerns regarding the potential consequences to them of being identified to the public. Their evidence must be understood, however, in light of the fact that both witnesses were advised by Mr Larna Phillips that the respondent 'was not able to redact or pixelate the footage':…(it is also unclear whether either witness was made aware that the incident reports have been released by the respondent). Both Dr C and Mr N appear to have been under the (inaccurate) and likely alarming apprehension that were the CCTV footage to be released, it would be broadcast in unredacted form, and the depth of the concerns outlined in their statements is understandable in that context. However, the applicant has never proposed and does not intend to broadcast any footage in a form that would enable those persons to be identified. In the circumstances, whilst the objections by Dr C and Mr N to the release of the footage are undoubtedly a relevant consideration, they should not be determinative of the present application. 1. In reply the respondent submitted: The key question becomes whether pixelation, limited to the face, head and neck, would ensure that the identities of persons recorded by the CCTV footage cannot reasonably be ascertained. The argument that such pixelation would be adequate…does not grapple with the need to consider who can reasonably be expected to recognise the persons in the CCTV footage, and how:… It is not necessary that the identity of the person be widely known: it will be sufficient to satisfy the definition of personal information if the information is communicated to someone who is able to identify the person… The question is not whether a 'determined and eccentric analyst' would be able to identify the persons recorded and it is not to the point whether someone has in fact been able to 'marry up' the incident reports and CCTV footage… The persons in the footage could be recognisable by other hospital staff and family members, neighbours or other members of the local community… It is not controversial that those in the social, familial or professional circles of the persons depicted in the CCTV footage would possess knowledge of the persons depicted not available to the public at large. The concern is that those persons could reasonably ascertain the identities of the persons depicted, notwithstanding the limited pixelation proposed by the applicant." 1. As noted above, I have viewed the footage in question a number of times. There can be no doubt that the identities of a number of persons appearing in the footage (although not all) could be identified from the footage in its raw form. In that sense release of the footage in its raw form would reveal personal information of those persons. However, in my view, if the face, head and neck (and any identifying marks such as tattoos) of each person is pixelated, there is no reasonable likelihood that any person appearing in the footage could be identified from Footage 2 or 3, that is the footage recorded outside Hospitals A and B. In my view, the respondent has not established that any person could be identified by reference to any contextual factors. 2. Footage 1, the footage recorded inside a SARS room, records events much closer to the camera than in Footage 2 and 3. I consider it is possible that, even if the face, head and neck of the patient and Dr C were pixelated, they might be identified from the footage. At the same time I consider that possibility to be remote. I do not consider that the respondent has established that "it could reasonably be expected" that disclosure of the footage in pixelated form would have that effect. 3. I do not overlook the concerns as to personal safety expressed by the hospital staff including Dr C and Mr N. However, as I do not consider there is a reasonable likelihood that any such staff member could be identified from pixelated footage, I do not consider it necessary to give this issue any weight. 4. Accordingly I do not find that there would be a public interest consideration against disclosure of the footage as identified in Item 3(a) of the table to s 14 of the GIPA Act if the faces, heads and necks, and any identifying marks such as tattoos, of persons appearing in the footage were pixelated prior to release. 5. I have referred to identifying marks such as tattoos because such marks may be sufficient to enable identification of an individual even where their face is not visible. I do not consider any element of the gait or body shape of any person in any of the footage to be sufficiently distinctive as to enable identification where the face, head and neck are concealed by pixelation. 6. I find the public interest considerations against disclosure identified in Item 3(a) of the table to s 14 of the GIPA Act would arise in relation to disclosure of the footage without any pixelation. Contravening an information protection principle or health privacy principle (Item 3(b)) 1. The respondent submits that disclosure of the footage could reasonably be expected to have the effect of contravening an Information Protection Principle under the PPIP Act or a Health Privacy Principle under the HRIP Act. 2. The respondent submits: * That the footage constitutes personal information as defined in the PPIP Act and the HRIP Act, that is: information or an opinion (including information or an opinion forming part of a database and whether or not recorded in a material form) about an individual whose identity is apparent or can reasonably be ascertained from the information or opinion. (s 4 of the PPIP Act; s5 of the HRIP Act) * That the footage constitutes health information concerning the persons who appear in the footage to be engaged in assaults on hospital staff and security, that is: (a) personal information that is information or an opinion about: (i) the physical or mental health or a disability (at any time) of an individual, or … (iii) a health service provided, or to be provided, to an individual, or (b) other personal information collected to provide, or in providing, a health service." (s6 of the HRIP Act); * That the release of the footage would contravene s18 of the PPIP Act, which relevantly provides: 18 Limits on disclosure of personal information (1) A public sector agency that holds personal information must not disclose the information to a person (other than the individual to whom the information relates) or other body, whether or not such other person or body is a public sector agency, unless: (a) the disclosure is directly related to the purpose for which the information was collected, and the agency disclosing the information has no reason to believe that the individual concerned would object to the disclosure, or (b) the individual concerned is reasonably likely to have been aware, or has been made aware in accordance with section 10, that information of that kind is usually disclosed to that other person or body, or (c) the agency believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or another person; and * That the release of the footage would contravene Health Privacy Principle 11, which prohibits disclosure of health information for a purpose other than the purpose for which the information was collected (see Schedule 1 of the HRIP Act). 1. To the extent that the identity of a person appearing in the footage can be ascertained from the footage, then it would constitute personal information about those individuals and potentially, in respect of patients receiving treatment at a hospital, also health information about those individuals. That information was collected for purposes relating to the safety and security of hospital staff and patients. Its release to the applicant would not be for that purpose or directly related to that purpose. 2. The release of the footage without pixelation would in my view disclose personal information and, at least in relation to Footage 1, reveal health information of the persons or patients appearing in the footage and thereby involve a breach of the information protection principle set out in s 18 of the PPIP Act and Health Privacy Principle 11. 3. However, as I have determined above, if the face, head and neck and any identifying tattoos or other distinctive features of all individuals appearing in the footage were pixelated, the identity of those individuals could not reasonably be ascertained from the footage and the release of the footage would not involve the disclosure of personal information or health information. 4. I therefore find that the release of the footage, with the face, head and neck and any identifying tattoos or other distinctive features of all persons appearing in the footage pixelated, would not contravene any information protection principle or health privacy principle. Exposing a person to a risk of harm (Item 3(f)) 1. The respondent submitted that: disclosure and publication of the CCTV footage can reasonably be expected to expose hospital staff, including doctors, nurses and security officers, to a risk of harm or of serious harassment or serious intimidation. The CCTV footage depicts incidents where hospital staff are assaulted by patients. It is reasonable to expect that publishing footage of the assaults puts hospital staff at risk of reprisals. 1. In support of this submission, the respondent referred to Associate Professor Harvey's statement and Mr N's statement. 2. The relevant part of Mr N's statement is summarised at [21] above. The evidence of Associate Professor Harvey referred to by the respondent was as follows: One of the key types of mental illness that presents to emergency departments is psychosis. Patients in the acute stages of a psychotic illness can be difficult to manage as the nature of their symptoms often leads to agitation, disorganised behaviour and a lack of trust in others. Persecutory delusions, where patients feel that other people or agencies are acting against them, are the most common type of delusion, being present in over 80% of delusional patients. Analysis of archival medical records has suggested that the content of delusions is influenced by sociocultural factors, with delusions relating to spying and improper use of technology becoming more common over recent decades. In recent years I have cared for a number of patients who have developed delusional beliefs about the hospital recording them on CCTV and publicly broadcasting this film for others' entertainment. I am concerned that any public broadcasting of film taken in or near areas essential for psychiatric care, such as emergency departments, SARs rooms and PECC units, could contribute to psychotic patients incorporating hospital staff into their delusional ideas. This would make caring for these patients more difficult and potentially more dangerous for hospital staff. 1. The applicant submitted in response that the concerns expressed "lack particularity". In this respect the applicant referred to Commissioner of Police v Field [2016] NSWCATAP 59 at [94] where an appeal panel referred, with apparent approval, to a factor favouring disclosure expressed in those terms in the decision under appeal in that case. 2. I accept that Mr N does have concerns for his safety if the footage were to be released in its raw form, however I do not consider that there would be likely to be any risk of harm to hospital staff or security if the footage were released in a pixelated form. 3. I understand Associate Professor Harvey to be suggesting that the public broadcasting of footage recorded in or near emergency departments or PECC units (Psychiatric Emergency Care Centres, which Associate Professor Harvey states are co-located with many emergency departments in New South Wales) might result in psychotic patients (not necessarily the patients appearing in the footage) becoming more likely to threaten or harm hospital staff. 4. In my view the connection between such harm and the disclosure of the footage is tenuous and speculative. I do not consider that Associate Professor Harvey's evidence established that the disclosure of the footage "could reasonably be expected" to have the effect of exposing any person to a risk of harm. 5. The respondent also submitted that the release of the footage might cause harm to the psychological well-being of the patients appearing in the footage and in particular the patient in the SAR in Footage 1. The respondent submitted: It is reasonable to expect that a risk of psychological harm will arise on the part of the patient depicted. It is reasonable to infer from the events depicted in the footage…that the patient may be suffering from mental-health related issues. Almost by definition, interactions between staff and patients that take place in a 'SAR' will be emotionally and psychologically charged and involve some issue relating to mental health. 1. The applicant submitted in response that there was no evidence to support that submission and that the respondent had offered "no reasoned explanation of how disclosure of the footage would directly cause recognised psychological harm to the individuals depicted". 2. In reply the respondent referred to the evidence of Dr Wright that: In my experience, it can be very distressing for a patient to be confronted with reminders of their behaviour and appearance (including CCTV footage of themselves) when they are very unwell. Not only does this have a detrimental effect on a patient's mental state to the extent that it may affect his or her equilibrium and willingness to follow treatment, but it can also create a feeling of distrust towards the health system. Even though pixelation of images might protect a person's privacy, it does not prevent that person from self-recognition. If a patient's entire body is pixelated, there is still enough information – for example, the sequence of the actions and the dimensions of the room – that remind the patient of the incident. Patients may also be recognised by family, friends and others who are not ignorant of what has happened to the patient, regardless of whether they have all the details surrounding that event. 1. I accept that there is hypothetically some risk of harm to patients arising in the manner suggested by Dr Wright. However I am not persuaded that the risk is substantial or that it could be said that it could reasonably be expected that such harm would occur. For harm to occur in that manner the patients would need to see the footage and recognise themselves in the footage, notwithstanding that their face, head and neck had been pixelated (noting that by reason of the pixelation no other person is likely to be able to recognise them and direct them to the footage). Even were both events to occur, that is the patient see the footage and recognise himself or herself, the patient would not necessarily suffer harm in the manner suggested. Prejudice in the supply of confidential information (Item 1(d)) 1. The respondent submitted that the images of the patients or persons likely to be patients appearing in the footage was confidential information supplied to the hospital in the course of its business and that the recording of CCTV footage facilitates the effective exercise of the respondent's functions. The respondent submitted: It is reasonable to expect that the disclosure of the CCTV footage will prejudice the supply of similar information in future; that is, by deterring patients (and particularly patients with issues relating to mental health) from seeking medical treatment in hospitals and/or inhibiting their relationships with medical professionals. 1. In support of this submission the respondent relied upon the following evidence given by Associate Professor Harvey: Confidentiality is a key component of health care. Aside from the legal restrictions on the disclosure of medical information, confidentiality in a medical setting has been described as performing three key roles; it allows patients a secure environment in which to give a full and frank account of their symptoms, it supports public confidence in the healthcare system and it confirms respect for patients' autonomy. Confidentiality is especially important in a mental health care setting. The stigma surrounding mental health illness means many patients often have to be given multiple assurances regarding confidentiality before they feel able to discuss their mental health symptoms with healthcare staff. In fact, a number of studies have shown that concerns about confidentiality are one of the most common barriers preventing young people with mental health problems seeking help. I fear that any breach of confidentiality, especially regarding mental health care, will make it even harder for patients with mental health symptoms to come forward for appropriate care. … In my experience, the CCTV cameras in SARs rooms are usually not hidden and in most SARs rooms a live feed of the CCTV images is being displayed on TV screen in a nearby nursing stations. My understanding is that this is to allow nursing and/or security staff to observe the patients behaviour in the room in a safe and unobtrusive manner. Having patients feel secure in the SARs rooms is essential for our health service to be able to assess and care for them in a safe manner. Any disclosure of these videos jeopardizes the perceived safety of the SARs rooms and could lead patients to refuse to be seen in these rooms due to concerns regarding their future confidentiality. This would then create a situation where health staff may have to assess patients in a less secure and safe environment. 1. The respondent also relied upon the evidence of Dr C that: 8. I am of the view that where the pixelation was only over the faces, that the patient could recognise himself and myself and release would have a detrimental effect of any future relationship I may have with that patient. 9. I am of the view that releasing this footage would cause a feeling of distrust towards the medical system within the patient. 10. I am of the view that it is reasonable that the patient treated in that room may be reluctant to return for treatment were this footage to be made publicly available. 1. In response the applicant submitted: It is important to bear in mind that the information that must be demonstrated as having the necessary quality of confidence is the information recorded in the footage, not the footage itself. Once this is made clear, the logic of the respondent's contentions on this issue quickly falls away. This is not a case involving the disclosure of information contained in patient files and records that has been gathered directly from individuals in circumstances giving rise to a reasonable expectation of privacy or confidence. … 1. The applicant submitted that there was no expectation of confidentiality in circumstances where the events captured in the footage take place in areas accessible to the general public (ie Footage 2 and 3) or "general hospital staff" (which I understand to refer also to Footage 1). 2. The applicant also submitted that the evidence relied upon by the respondent is not: capable of establishing that, were the footage to be pixelated in the manner proposed by the applicant there would be any compelling basis to conclude that parties might be deterred from seeking treatment for mental health problems in that staff would no longer want to use SARs. 1. In reply the respondent submitted that the CCTV footage does contain or disclose confidential information because: the events captured by the CCTV footage perform part of patients' admission to hospital for the purposes of their medical treatment. The information is connected to medical treatment, giving the quality of confidence. 1. I do not consider that the footage recorded in public areas, that is Footage 2 and 3 could be said to record confidential information, nor am I satisfied that the events recorded "form part of any patient's admission to hospital". It may be reasonable to infer that the persons recorded in that footage threatening hospital security staff were patients or may subsequently have become patients. However there is no basis to conclude that the events recorded on the CCTV constituted part of their treatment or part of their admission to the hospital. 2. I accept that the events recorded in the SAR in Footage 1 constitute part of the patient's medical treatment, or admission for medical treatment. However I am not satisfied that disclosure of that footage with all faces, hands and necks pixelated could reasonably be expected to prejudice the supply to the hospital of confidential information. 3. In Commissioner of Police, New South Wales Police Force v Camilleri [2012] NSWADTAP 19 at [28] to [29] an Appeal Panel of the Administrative Decisions Tribunal cited an earlier decision of the Appeal Panel in Director General, Department of Education and Training v Mullett & Anor (GD) [2002] NSWADTAP 13, which discussed clause 13(b) of Schedule 1 to the Freedom of Information Act 1989 (NSW) which was in similar terms to Item 1(d) in the table to s 14 of the GIPA Act. 4. The Appeal Panel in Camilleri at [28] quoted the following passage from the decision in Mullett: 58 In our view cl 13(b)(ii) requires the Tribunal to engage in a relatively abstract analysis. It must ask whether material of the kind sought to be protected on the present occasion would, if released, prejudice the supply of similar material to government in the future, as a matter of reasonable expectation. That requires the Tribunal to characterise the nature of the material sought to be protected on the present occasion; to identify the extent to which material of that kind can only be obtained, or can only reasonably be obtained, by confidential communication; the extent to which guarantees of confidentiality may be necessary. We agree with the dicta of Young CJ in Ryder v Booth [1985] VR 870 as to how a similar question arising under the Victorian FOI Act's in-confidence exemption (whether disclosure would be reasonably likely to impair the ability of an agency to obtain information communicated in confidence) should be approached. His Honour said at 872: 'The question then is, would disclosure of the information sought impair (i.e. damage) the ability of the [agency] to obtain similar information in future. ... It may be noted that it is the ability of the [agency] that must be impaired. The paragraph is not concerned with the question whether the particular doctor whose report is disclosed will give similar information in future but with whether the agency will be able to obtain such information. ...' and stated, at [29]: This approach was endorsed in many subsequent Tribunal and Appeal Panel decisions. The same approach is required, as we see it, in relation to many of the s 14 Table considerations. 1. I do not consider that either the treatment of a patient, or the admission of a patient for treatment in a hospital, of themselves constitute the supply to the hospital of confidential information. A patient upon admission to hospital will supply, or have supplied on their behalf, confidential information, but that is distinct and separate from the actions of treatment or admission. Nor do I consider that the disclosure of the footage, the subject of the application, would be likely to prejudice the supply to the relevant hospitals of confidential information in the future. Prejudicing the exercise of an agency's function (Item 1(f)) 1. The respondent submitted that, even if the information contained in the CCTV footage is not confidential "its release would nevertheless prejudice the respondent and the relevant hospitals in the exercise of their functions." 2. The respondent described its functions and the functions of the relevant hospitals as follows: 87. Local health districts are constituted under s.17 of the Health Services Act 1997 ("HS Act") primarily to facilitate the conduct of public hospitals and health institutions and the provision of health services for residents of the relevant area: HS Act, s.8. A "health service" includes a "hospital service" with the word "hospital" defined to mean "an institution at which relief is given to sick or injured people through the provision of care or treatment". HS Act, Dictionary, Part 1. The primary purposes of a local health district are to (HS Act, s.9). (a) provide relief to sick and injured persons through the provision of care and treatment; and (b) promote, protect and maintain the health of the community. 88. The functions of the respondent as a local health district include, but are not limited to, the following (HS Act, s.10): (a) generally to promote, protect and maintain the health of the residents of its area; (b) to conduct and manage public hospitals, health institutions, health services and health support services under its control; (c) to give residents outside its area access to such of the health services it provides as may be necessary or desirable; (d) to achieve and maintain adequate standards of patient care and services; (e) to ensure the efficient and economic operation of its health services and health support services and use of its resources. 1. The respondent submitted that: In light of the risk of harm to patients…and the risk that patients will be deterred from accessing medical treatment if their interactions with hospital staff are broadcast…publication of the CCTV footage would prejudice the effective exercise by the respondent of its functions. Specifically, release of the material would impede the ability of the respondent to promote, protect and maintain the health of residents and to manage hospitals. The disclosure would have this effect by: (a) creating a risk of direct, psychological harm to the patients pictured in the CCTV footage; (b) creating a risk that patients (including but not limited to the patients in the CCTV footage) will be deterred from seeking medical treatment, particularly where mental illness is a factor; and (c) undermining the use of "SARs" as "safe places" for the assessment of patients who present to Emergency Departments with potential mental health issues. 1. The applicant's submissions addressed Items 1(d) and 1(f) together. Those submissions are summarised above in my consideration of Item 1(d). 2. In reply, the respondent referred to the evidence of Associate Professor Harvey and Dr C set out above and additionally referred to the evidence of Dr Wright. The relevant part of the evidence of Dr Wright, in addition to his evidence set out at [73] above, was as follows: There is an ongoing debate as to whether CCTV should be used in clinical areas in the hospital system. On the one hand, the use of CCTV ensures the safety of patients and others; on the other hand, its use can be construed as an unwelcome intrusion on an individual's privacy and confidentiality. Whilst I strongly support the former view for the reasons indicated below, in my view, the release of the CCTV footage in question would undoubtedly fuel the argument for the latter position. 1. I am persuaded that the release of footage recorded in or around the SAR, even with the face, head and neck of all persons appearing in the footage pixelated, could reasonably be expected to have the effect of prejudicing the effective exercise of the respondent's functions. 2. A patient being interviewed by a doctor or other health professional within a SAR is entitled to expect that their interaction will remain confidential. In my view the public broadcast of any footage recorded in a SAR (or of events occurring in a SAR) will diminish patients' confidence in the confidentiality of their treatment and their interactions with health professionals. I consider this would be the case even if the footage is only broadcast with identifying features pixelated so that no identification of the patient is possible. 3. I accept that such publication, which is the foreseeable, in fact intended, result of release of the footage will, as the respondent submits, "create a risk that patients will be deterred from seeking medical treatment particularly where mental illness is a factor", and, perhaps more significantly, "undermine the use of SARs as safe spaces for the assessment of patients who present to emergency departments with potential mental health issues". If a doctor or other health professional cannot, with honesty, say to any patient in a SAR who might observe the CCTV camera, that the camera is there to ensure the safety of patients and others and that nothing recorded by the camera will be released publicly, that would have the potential to inhibit the efficacy of the provision of SARs and potentially discourage patients from attending a hospital. 4. I am not persuaded that the disclosure of footage recorded in public areas outside a hospital could reasonably be expected to have the same effect. 5. The evidence presented by the respondent does not satisfy me that the disclosure of Footage 2 and 3, which records events occurring in public spaces outside Hospitals A and B, could reasonably be expected to diminish the likelihood that patients, including patients with mental health issues, would seek assistance at those hospitals or hospitals generally. The Balancing Process 1. As noted above, s 13 of the GIPA Act requires that I balance the public interests against disclosure which I have identified above against the public interest in disclosure. 2. I consider that the public interest in disclosure is stronger than acknowledged by the respondent. 3. The respondent is correct in pointing out that the video footage would add little to the information already provided in the incident reports which the respondent has released. However the impact of the video footage in stimulating public interest and concern in relation to the issue of violence against hospital staff (which Associate Professor Harvey acknowledges is an increasing issue) is likely to be much greater than the impact likely to be generated by the publication of the information from the incident reports alone without the footage. 4. On the other hand, I do not consider that the public interest in disclosure is as strong or "compelling" as the applicant submits. 5. I do not consider that the public interest in disclosure of Footage 1 is sufficient to overcome the detrimental consequences to the effective exercise of the respondent's functions which I have outlined above. I find that there is an overriding public interest against disclosure of Footage 1, which records an incident occurring in a SAR. I find that an overriding public interest against disclosure exists in relation to Footage 1 even if the faces, heads and necks of the persons appearing in the footage are pixelated. Accordingly I will affirm the respondent's decision in relation to Footage 1. 6. I consider that the general public interest considerations against releasing Footage 2 and 3 without pixelation, arising from the disclosure of personal information and, potentially, health information, would outweigh the public interest considerations in favour of release of the footage. 7. However I do not consider that there would be any general public interest considerations against release of Footage 2 and 3 if the face, head and neck and any tattoos or other distinguishing features of any persons appearing in the footage are pixelated. 8. As the respondent submits, section 74 of the GIPA Act, which permits the respondent to delete information from a copy of a record to which access is to be provided, would permit the respondent to pixelate the identifying features from persons appearing in the footage. 9. The question remains as to whether, given that the respondent does itself not have the facility to pixelate the footage, the respondent's decision should nevertheless be affirmed. 10. Section 73 of the GIPA Act prohibits the imposition of conditions upon the use or disclosure of information to which access is provided. For this reason it is neither possible nor appropriate to provide the applicant with access to unpixelated footage on the basis that the applicant will pixelate the footage and return the unpixelated footage to the respondent. 11. It appears the only option available for the achievement of pixelation of the footage would be for the respondent to employ a third party to undertake the pixelation. The evidence tendered by the applicant discloses that the footage could be pixelated by a third party at the respondent's direction for a cost of no more than $2,000 plus GST. 12. The GIPA Act contains no provision for the respondent to require the applicant to pay the costs of pixelation. Section 64 provides for the payment of a processing charge, however that is limited to $30 per hour for each hour of processing time. 13. In Willner v City of Port Phillip (Review and Regulation) [2015] VCAT 1320, the Victorian Civil and Administrative Tribunal refused an application for access to CCTV footage on the basis that "it was not practicable to grant access to the footage with such deletions to render it not an exempt document…given the cost burden on Port Phillip rate payers". 14. The relevant legislation in Victoria, the Freedom of Information Act 1982 (Vic) required a document to be produced with such deletions as would make the document not exempt from disclosure "if it is practicable for the agency or Minister to grant access" to such a document (see s25). There is no equivalent provision in the GIPA Act. 15. If the cost burden of the process of pixelation were to fall upon the respondent, a question would arise whether the correct and preferable decision in respect of the request for access would be that the respondent incur that cost in order to make pixelated footage available to the applicant. 16. However, the applicant has offered to pay the cost of pixelation by a third party under the direction of the respondent. The respondent does not suggest there is any obstacle to the utilisation of such a third party for that purpose, if the applicant is prepared to meet the cost. In those circumstances, the issue outlined in the previous paragraph does not arise. 17. Therefore, noting that the applicant has agreed to meet the costs incurred by the respondent in having the footage pixelated, I will make the following orders: 1. Affirm the decision to refuse to provide access to the video footage identified as Footage 1 being footage recorded by CCTV cameras in and outside a Safe Assessment Room. 2. Set aside the decision to refuse to provide access to the video footage identified as Footage 2 and Footage 3. 3. In place of the decision to refuse to provide access to Footage 2 and Footage 3, the decision is made that access is to be provided to Footage 2 and Footage 3 with the faces, heads, necks and any tattoos or other identifying marks of any person appearing in the footage concealed by pixelation. 4. Grant the parties liberty to apply by written notice to the registry in the event that any issue arises in relation to compliance with the above orders. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 June 2017