The Independent Police Conduct Authority (IPCA) and Office of the Privacy Commissioner (OPC) have today released their Joint Inquiry into Police conduct when photographing members of the public. The report has found that a general lack of awareness amongst Police of their obligations under the Privacy Act has led to officers routinely taking, using and retaining photographs when it is not lawful for them to do so. It also found that thousands of photographs of members of the public have been kept on the mobile phones of individual officers or, if transferred to the Police computer system, not destroyed after there is no longer a legitimate need for them.
The Joint Inquiry was initiated in March 2020 after Wairarapa whānau complained that Police officers were photographing their rangatahi in circumstances they felt was unfair or unjustified. Subsequent media coverage led more people to report similar experiences. It became apparent that the issues these incidents raised had much broader application, and the Inquiry considered wider concerns about the way in which photographs or video recordings of members of the public were being taken, used, and retained in a variety of policing contexts.
The Joint Inquiry makes it clear that, while Police will sometimes have lawful and valid reasons to take photographs, this must be done in a privacy-compliant way. Digital photography can be a powerful policing tool, but as sensitive biometric personal information it must also be collected, used, stored and retained lawfully and safely.
In relation to the three complaints which were upheld, the Joint Inquiry has found that Police were not justified in photographing the rangatahi, as the photographs were not necessary for a lawful policing purpose. We also found that, in these incidents, Police had not properly sought consent from the rangatahi or their parents or caregivers before taking the photographs, and had not adequately explained why the photographs were being taken and what they would be used for.
During the broader investigation, the Joint Inquiry also found that:
• Police had developed a practice of regularly taking duplicate sets of “voluntary” fingerprints and photographs from youths who ended up in Police custody for suspected offending and retaining them for a longer period than permitted by the regime for compulsory prints and photographs under the Policing Act. The Joint Inquiry found that this practice was unlawful.
• There was a widespread belief amongst officers that there is no difference between photographing adults or youths for intelligence-gathering or investigative purposes, notwithstanding the fact that children and young people have special protections in the NZ criminal justice system, set out in both the United Nations Convention on the Rights of the Child (UNCROC) and the Oranga Tamariki Act. We found Police practice and procedure to be, in many cases, inconsistent with those protections.
• Many officers mistakenly see consent as allowing them to collect personal information, including photographs and prints, in situations where the law does not otherwise allow them to do so. We found that a person’s consent cannot make the otherwise unlawful or unnecessary collection of personal information lawful or compliant with the Privacy Act.
These problems have arisen because Police as an organisation have not developed appropriate training, guidance or policies to enable officers to collect and retain personal information, including photographs, effectively and lawfully.
The Joint Inquiry recommends that Police policy, procedures and training be revised and enhanced to reflect that:
• photographs are sensitive biometric information;
• when Police are photographing adults and youth, they are doing so either under a specific statutory authorisation, or in compliance with the information privacy principles; and
• photographs should be taken in accordance with youth specific protections.
To assist Police, the Joint Inquiry Report has considered the variety of contexts in which officers may see photographs of members of the public as beneficial for policing. The report outlines whether photographs in each context are likely to have a lawful purpose, and if so, recommends appropriate thresholds for taking photographs that should be incorporated into Police policy.
In December 2021 the Deputy Privacy Commissioner issued a compliance notice to Police to stop collecting duplicate photographs and biometric prints from young people and delete unlawfully collected material. Police have been reporting regularly to OPC on progress with the compliance notice.
The Joint Inquiry team is heartened by the undertakings made by Police to prioritise the implementation of the recommendations of both the Joint Inquiry and compliance notice. Police will consult quarterly with the Office of the Privacy Commissioner on progress with this work and publish progress updates on both the compliance notice and Joint Inquiry recommendations on their website.
Media queries can be directed to Office of the Privacy Commissioner media contact: Jared Nicoll at jared.nicoll@privacy.org.nz or 021 959 050.