Case Note: Privacy and Health Records

Introduction

The New South Wales Civil and Administrative Tribunal found that certain hospital CCTV footage could be released under freedom of information legislation, despite public interest and privacy concerns, if the faces, heads, necks and any tattoos or other identifying marks of persons in the footage were pixelated.

Facts

The CCTV footage in question was collected by two hospitals that form part of the South Eastern Sydney Local Health District ( LHD ). In March 2016, a television broadcaster, Seven Network, made a request to access the LHD’s ‘incident reports and video of assaults on security and staff at hospitals since July 1, 2014’.

The request was made under the applicable New South Wales freedom of information legislation, the Government Information (Public Access) Act 2009 (NSW) ( GIPA Act ).

Section 9 of the GIPA Act provides that a person who applies for access to government information (the LHD information in this case) has a legally enforceable right to be provided with access unless there is an overriding public interest against disclosure of the information.

The LHD provided Seven Network with the requested incident reports, but determined that the CCTV footage could not be produced. There were three relevant pieces of footage, described as follows:

  • Footage 1: An incident in the ‘Safe Assessment Room’ (SAR) of ‘Hospital A’, which show ed a male patient and a doctor conversing, and then the patient attempting to kick the doctor, following which the patient is subdued by other staff. (SARs we re described as separate, secure rooms in the Emergency Department that provide private spaces to manage a number of sensitive need s, such as grieving relatives, to allow high- level observation of patients, and to undertake assessment and treatment of patients attending for mental health services.)
  • Footage 2: A man, likely to be a patient, approaching the entrance to the Emergency Department of ‘Hospital A’. The man is approached by a security guard, an d attempts to strike the guard. The man is restrained by security staff until police arrive. Nurses and members of the public can also be seen.
  • Footage 3: A young man attempts to strike a security guard outside the Emergency Department at ‘Hospital B’. Two other members of the public are also visible along with other security guards. The security guards restrain the young man and take him inside the Emergency Department.

In June 2016, Seven Network applied to the New South Wales Information and Privacy Commissioner for a review of the LHD’s decision. The Commissioner recommended that the LHD make a new decision and consider whether it could redact information from the footage through pixelation, or create a new record by removing sections of the
footage.

In September 2016, the LHD refused Seven Network access to the footage, on the basis that there was an overriding public interest against disclosure of the footage, as it contained sensitive health and personal information, and there was no ability of the LHD to redact or pixelate the information. Seven Network applied to the Tribunal for review of this decision.

Consideration by the Tribunal

The Tribunal considered the relevant provisions of the GIPA Act, including:

  • Section 12, which relevantly provides that there is a general public interest in favour of disclosure of government information.
  • Section 13, which relevantly provides that there is an overriding public interest against disclosure of
    government information if there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure.

Factors in favour of disclosure (as noted in section 12 of the GIPA Act) included:

  • 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.
  • 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.

Seven Network submitted that it intended to broadcast the footage as a news item to increase public awareness of violence towards hospital staff, and to stimulate ‘debate regarding the appropriate legislative and law enforcement response’, which was consistent with the factors in favour of disclosure above.

As part of its evidence, Seven Network also offered to pixelate the CCTV footage at its own cost, either by undertaking the task itself, or by paying a third party retained by the LHD to do so.

The LHD relied on certain factors against disclosure as are set out in section 14 of the GIPA Act. These factors included:

  • Disclosure of the information could reasonably be expected to reveal a person’s personal information and health information (in breach of privacy and health records legislation).
  • Disclosure of the information could reasonably be expected to expose the LHD staff and patients to
    a risk of harm, serious harassment or serious intimidation. The LHD submitted that publication
    of the footage put hospital staff, including doctors, nurses and security officers, at risk of reprisals, and would have a detrimental effect on a patient’s mental state and create in them a feeling of distrust towards the health system.
  • Disclosure of the information could reasonably be expected to prejudice the supply to LHD of confidential information that facilitates the LHD’s functions.
  • Disclosure of the information could reasonably be expected to prejudice the exercise of the LHD’s
    functions (even if the information was not considered confidential).

Regarding the last two factors, the LHD submitted that:

  • release of the footage would deter patients (and particularly patients with issues relating to mental
    health) from seeking treatment, and would inhibit their relationships with medical professionals; and
  • in relation to SAR footage in particular, any disclosure of this footage could lead patients to refuse to be seen in these rooms due to confidentiality concerns, and this in turn would create a situation in which patients were seen in a less secure and safe environment.

The Tribunal considered each of the public interest considerations relied upon by the LHD, and the Tribunal’s findings included the following:

  • Release of the footage without pixelation would be in breach of privacy legislation (and health
    legislation in relation to Footage 1 which depicted a patient). However, if the face, head, neck, and
    any tattoos or other identifying marks of persons in the footage were pixelated, then the identity of
    those persons could not reasonably be ascertained, the footage would not be personal information or health information to which the relevant privacy and health records legislation applied.
  • The evidence did not establish that there was risk of harm to hospital staff, security staff or patients if the footage were released in pixelated form (as described above).
  • Footage 2 and 3, being recorded in public areas, did not record confidential information, nor did the
    events recorded by this footage form part of any patient’s admission (such as to give it the quality of confidential information).
  • Release of Footage 1 (in 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 LHD’s functions. The Tribunal stated that:

    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 … [Such publication will] “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.

  • Disclosure of Footage 2 and 3, which records events occurring in public spaces, would not have
    the same effect as disclosure of Footage 1 (so as to diminish the likelihood that patients, including
    patients with mental health issues, would seek assistance at hospitals).

The Tribunal then balanced the public interest against disclosure as identified above, against the public interest in favour of disclosure. The Tribunal found that:

  • There was an overriding public interest against disclosure of Footage 1 (which recorded an incident occurring in a SAR) even if the faces, heads and necks of the persons appearing in the footage were pixelated.
  • 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. However, there were no general public interest
    considerations against release of Footage 2 and 3 with the face, head, neck and any tattoos or other distinguishing features of any persons appearing in the footage pixelated.

The Tribunal ordered that Seven Network be granted access to Footage 2 and 3 with pixelation as described above. The order was made on the basis that Seven Network would pay the costs of LHD retaining a third party to pixelate the footage.

Future Impact

This case demonstrates that pixelation could be used where video footage is requested under freedom of information legislation, but there are privacy, confidentiality, or public interest exemptions under the legislation that may apply to release of the footage in its raw form.

In this case, the Tribunal found that disclosure of the SAR footage (concerning events in a private patient area, rather than in public spaces) could reasonably be expected to have the effect of prejudicing the effective exercise of the LHD’s functions, even where the footage was pixelated, as disclosure could discourage patients attending hospital. The Australian Capital Territory and South Australian legislation contain a similar exemption, which applies where disclosure would have a substantial adverse effect on the effective performance by an agency of its functions or operations.

In all jurisdictions, when dealing with requests for video footage, the other relevant exemptions are where the disclosure would disclose a person’s personal information, or where the information was obtained in confidence and disclosure would be contrary to the public interest because it would impair supply of that information in future. In the circumstances of this case, the Tribunal was not satisfied such exemptions applied where the footage
could be pixelated, but these exemptions need to be considered on a case-by-case basis. Factors to consider may include whether the footage records a private or public location, and whether it records part of a patient’s treatment or communications between patients and health professionals.

We note that freedom of information legislation in the Australian Capital Territory, the Northern Territory, Queensland, South Australia, Victoria, and Western Australia requires that, where practicable, access be granted to information with such deletions so as to make the information sought not exempt from disclosure.

There are no such express provisions under the GIPA Act in New South Wales or under freedom of information legislation in Tasmania, but provision of information with exempt material deleted is not precluded in these jurisdictions.

Organisations that are subject to freedom of information legislation will need to consider the practicality of pixelating or redacting footage to overcome any possible exemptions. In the Northern Territory, South Australia, Victoria and Western Australia, organisations may recover the costs of pixelating footage, but in the other jurisdictions the fees are limited to application fees and time-based processing fees only.

 

If you have any questions arising out of this article, please contact Giovanni Marino on (03) 9865 1339
or email giovanni.marino@healthlegal.com.au

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