A member of NSW SES has sent me a copy of Fleet Bulletin – 3/2018 relating to Dash Camera Audio/Visual Recording Devices. The Bulletin directs all units remove dash cams from their vehicles. It says:
This action is required due to the responsibilities of NSW SES members and the NSW SES as a service under the Privacy and Personal Information Protection Act 1999 [sic] (NSW) (Privacy Act) and Government Information (Public Access) Act (GIPA Act) [sic].
Key issues under these acts include
- The need for there to be a clear purpose for the use of Dash Cams and the relationship to the functions of NSW SES,
- The requirement that the use of the recording device not intrude to an unreasonable extent on the privacy of individuals,
- The requirement for prominent signage that notifies individuals of the reason, legislative authority and agency disclosure relevant to the dash cam footage.
- The requirement for the service to provide community access to information about how NSW SES capture footage and the potential for third parties to access footage, including with respect to the GIPA Act and in relation to subpoenas and statutory notices.
- The need for the service to store the data and safeguard areas where dash cam footage is viewed, retained, stored and overwritten and the implementation of standards for the disposal of data and auditing of same.
Today’s correspondent says:
I’m concerned about this as my Volunteers no longer have protection from others drivers with what actually happened/who’s at fault. I’m especially concerned regarding response driving as having a dash cam is just a little more reassurance.
It also provides a training tool afterwards.
NSW Police Force vehicles use dam cams and don’t have signage on the vehicle. Why would the SES be any different?
Really, can we use dash cams? At a unit/volunteer level what should/must be regarding notification/disclosure to the public, storage (or simply overwriting old footage unless needed) etc?
The Office of the NSW State Emergency Service is an Executive agency of the NSW government (Government Sector Employment Act 2013 (NSW) Sch 1). The State Emergency Service is a fundamental part of government. It follows that the SES is bound by the Privacy and Personal Information Protection Act 1998 (NSW) (the Privacy Act) and the Government Information (Public Access) Act 2009 (NSW) (the GIPA Act).
The Privacy Act says (s 8)
A public sector agency must not collect personal information unless:
(a) the information is collected for a lawful purpose that is directly related to a function or activity of the agency, and
(b) the collection of the information is reasonably necessary for that purpose.
Section 10 says:
If a public sector agency collects personal information from an individual, the agency must take such steps as are reasonable in the circumstances to ensure that, before the information is collected or as soon as practicable after collection, the individual to whom the information relates is made aware of the following:
(a) the fact that the information is being collected,
(b) the purposes for which the information is being collected,
(c) the intended recipients of the information,
(d) whether the supply of the information by the individual is required by law or is voluntary, and any consequences for the individual if the information (or any part of it) is not provided,
(e) the existence of any right of access to, and correction of, the information,
(f) the name and address of the agency that is collecting the information and the agency that is to hold the information.
Personal information means ‘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’.
Under the Workplace Surveillance Act 2005 (NSW) an employee includes a volunteer (s 3, definition of ‘employee’). The cabin of the SES truck is therefore a workplace for the purposes of that Act. Surveillance of an employee (s 3) means:
… surveillance of an employee by any of the following means:
(a) “camera surveillance”, which is surveillance by means of a camera that monitors or records visual images of activities on premises or in any other place …
(c) “tracking surveillance”, which is surveillance by means of an electronic device the primary purpose of which is to monitor or record geographical location or movement (such as a Global Positioning System tracking device).
Before conducting surveillance an employer must notify employees that they are to be subject to surveillance and the use that will be made of the data that is obtained (s 10). Notices are not required where there is camera surveillance ‘at a workplace of the employer that is not a usual workplace of the employee’. Where there is camera surveillance (s 11):
(a) cameras used for the surveillance (or camera casings or other equipment that would generally indicate the presence of a camera) are clearly visible in the place where the surveillance is taking place, and
(b) signs notifying people that they may be under surveillance in that place are clearly visible at each entrance to that place.
The Surveillance Devices Act 2007 (NSW) s 7 says:
A person must not knowingly install, use or cause to be used or maintain a listening device:
(a) to overhear, record, monitor or listen to a private conversation to which the person is not a party, or
(b) to record a private conversation to which the person is a party.
But that prohibition does not apply to the ‘unintentional hearing of a private conversation by means of a listening device’ or ‘all of the principal parties to the conversation consent, expressly or impliedly, to the listening device being so used’.
With respect to optical surveillance devices, the Act says (s 8)
A person must not knowingly install, use or maintain an optical surveillance device on or within premises or a vehicle or on any other object, to record visually or observe the carrying on of an activity if the installation, use or maintenance of the device involves:
(a) entry onto or into the premises or vehicle without the express or implied consent of the owner or occupier of the premises or vehicle, or
(b) interference with the vehicle or other object without the express or implied consent of the person having lawful possession or lawful control of the vehicle or object.
Under the Government Information (Public Access) Act 2009 (NSW) s 4 ‘”government information” means information contained in a record held by an agency’. This Act says there is a presumed right to be able to access government information unless there are overriding interests why access should not be granted (s 5). IT doesn’t say anything about record keeping or how long records should be kept for. I will assume, without establishing it, that the Office of the NSW State Emergency Service and the State Emergency Service are agencies for the purposes of this Act.
Finally, the State Records Act 1998 (NSW) s 3 defines a state record as ‘any record made and kept, or received and kept, by any person in the course of the exercise of official functions in a public office, or for any purpose of a public office, or for the use of a public office, whether before or after the commencement of this section.’
Application of the rules to the issue
A dash cam, as I understand it, can do two things. It can record video and sound. When properly installed it is facing forward and recording video of what is happening outside of the vehicle. It has a loop recording function so as the memory fills it overwrites earlier images. When there is an accident or sudden stop the dash cam can, either automatically or by operator action, protect those images so they are not overwritten.
At the same time the dash cam records sound. That will include road sound that comes into the vehicle as well the sound of people in the vehicle, so it can record conversations. The sound recording feature can be turned off.
The first question then is, is the dash cam recording ‘personal information’? With respect to its video recording function I suggest not. As noted elsewhere on this blog there is no right to privacy and a person is free to photograph whatever they can see (see Photographing a rescue scene (November 11, 2016)). By filming the traffic and events outside the vehicle, events that are public, there is no breach of the privacy act. Even if you enter private property and the film continues that is not, in my opinion, recording ‘personal information’
Recording conversations in the vehicle is another matter (see Taking photos, recording sound (February 23, 2015)). The conversations themselves may or may not contain personal information, it depends on the subject under discussion.
Even if the intention is to have the dash cam operate to provide ‘protection from others drivers with what actually happened/who’s at fault’ there is no doubt that it does form surveillance of the driver. One might think the accident will always be the other driver’s fault but that is not the case. The dash cam may well record (as may GPS tracking) that it was the SES driver at fault. That’s not a bad thing. The State is meant to be a model litigant. If it turns out the SES driver is at fault then the State won’t put the other side to protracted litigation. If the state was at fault then the state needs to pay for the damages as does anyone. Any evidence that establishes what happens is good, regardless where the ultimate conclusion falls. But even so it is, no doubt, a form of surveillance of the conduct of the driver and does, therefore, constitute ‘workplace surveillance’ with all the obligations for notice that this brings.
With respect to the use of the dash cam as an optical surveillance device, a dash cam mounted on the windscreen is a camera that is clearly visible. Where it has been installed with the knowledge of the unit controller or the person (if any) responsible for maintaining the vehicle it will have been installed with the express or implied permission of the person having lawful control of the vehicle. As for its role as a listening device it is not intended or put there to record private conversations and, further, if everyone knows it’s there then the people in the vehicle may be taken to have given implied consent to the recording.
The GIPA Act does say that there is a right to access a government record. That would suggest that if someone wanted to view the recording from a dash cam, they would have a right to do so, but only if that recording still exists. The State Records Act requires agency to take appropriate care to keep and store their records, but not for ever. The implementation guide to the new Standard on Records Management says (at p. 18):
Organisations should implement policy, business rules and procedures to ensure that records and information are kept for as long as they are required …
Without going into the details (in part because the links to further ‘Key guidance for implementing this requirement’ don’t work, which is not a good look for a State Archives Office that is trying to set the standard for the digital storage of government records) we can say that this does not require records to be kept forever. Even if a recording on a dash cam is a state record, it may be something that is only required to be kept until it is over recorded given that nothing happened during that time.
It could be argued that recording the driving of the vehicle is not a record made for ‘the exercise of official functions in a public office, or for any purpose of a public office, or for the use of a public office’ and so it is not a State Record. If that is true, however, it would run into difficulties as it would mean the recording is not made ‘for a lawful purpose that is directly related to a function or activity of the agency’ (Privacy Act 1998 (NSW) s 8). But again that’s only relevant if what’s being recorded and ‘collected’ is personal information.
Conclusion on the SES directive
Fundamentally the SES directive is correct though I would suggest it’s a very cautious or conservative approach. It is the case that the use of dash cams in SES vehicles does raise issues under the legislation listed above. Much of that could probably be dealt with by turning off the audio record feature and putting a sign in the cabin that says ‘Warning: Conversations in this truck may be recorded’ (just in case the audio feature gets turned on, again.)
That does not however deal with issues of how the recording is to be dealt wth and how it is to be stored and accessed and those are important considerations. It would be incumbent on the SES to actually consider how long recordings should be kept for and ensure people are trained to know how to turn off the audio recording, how to set the protection to ensure video that needs to be kept is kept and then provide adequate storage for that video. If you are keeping video of an accident no doubt it may be required to be produced under subpoena or other legal process so it does need to be retained and be locatable.
The question of do we really have to worry about all that at volunteer/unit level forgets that units are not independent agencies, they are part and parcel of the government agency that is the State Emergency Service (see How autonomous are NSW Rural Fire Brigades? (February 25, 2015)). As part of the government units have to comply in the same way the local branch of any state agency has to comply with laws governing that agency or state agencies in general.
Why don’t police have to comply with these rules?
The answer to that is because they have special rules. The Surveillance Devices Act 2007 (NSW) s 50A provide for the use of body-worn video by police officers. The Law Enforcement (Powers And Responsibilities) Act 2002 (NSW) Part 8A (ss 108A-108H) deals with the use of police in car video equipment. It deals with many of the issues raised here; they include giving the authority to record private conversations (s 108C and 108D ‘Person to be informed that conversation will be recorded’) included that they can be recorded without the person’s consent (s 108D(3)). The use of police recording devices ‘does not constitute the use of a listening device for the purposes of the Surveillance Devices Act 2007’ (s 108F) and so all the provisions set out in the Surveillance Devices Act with respect to notice and consent etc do not apply. Recordings made by police must be retained for 2 years.
My correspondent asked:
NSW Police Force vehicles use dam cams and don’t have signage on the vehicle. Why would the SES be any different?
The Answer is because the police have the benefit of the Surveillance Devices Act 2007 (NSW) s 50A and the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) Part 8A, and the SES does not.
A possible alternative
One alternative, that may produce a different conclusion, is if the driver, rather than the unit, owned the dash cam. Whilst the driver is volunteering for the SES and is in an SES truck and is therefore representing and part of the SES he or she is still entitled to keep their own records. If I keep a diary of what I did it remains my diary even if I keep a record of what happened when I was volunteering. If it is the driver that owns the dash cam there can’t be an issue of ‘workplace surveillance’ as it is not the workplace that is conducting the surveillance. He or she is recording information about him or herself and their driving. If there are any private conversations recorded that is not intentional and further, given the driver is there and party to the conversations that is not an offence nor is using the device to record in order to protect his or her legal rights should an accident occur (Privacy Act 1998 (NSW) s 7(3)(b)). And again that issue could be largely resolved by turning off the audio recording feature.
It may be. therefore, that if the driver owns the dash cam and sets it up before driving and does so with the intention of having his or her own record of their driving, that may well avoid most of these issues. However, as a member of the SES one is required ‘to comply with, the procedures or instructions of the State Emergency Service’ (State Emergency Service Act 1989 (NSW) s 18A). Accordingly if the Commissioner directs that members are not to use dash-cams in SES trucks a member who fails to comply may be subject to disciplinary action.
The directive from the SES does seem like an over-the-top reaction to what is surely a good idea. Dash cams are cheap, easy to operate and really useful to resolve issues should a motor vehicle accident or near miss occur – whether they are resolved in favour of the SES or not. As a general rule a private citizen can do anything unless there is a law that says they can’t; a government can’t do anything unless there’s a law that says it can.
I can put a dash cam in my car as I’m not a state agency. I’m not required to comply with the Privacy and Personal Information Protection Act 1998 (NSW), the Government Information (Public Access) Act 2009 (NSW), the State Records Act 1998 (NSW) etc. Equally my car is not a workplace so I don’t have to worry about workplace surveillance. The Surveillance Devices Act does apply to me but if I’m in the car I’m recording a conversation to which I’m a part (though in truth, I’ve turned off the audio recording on my dash cam for that reason, I don’t want to record those conversations and if there is an accident, I don’t want to reveal to the other side what was being said in case it was private). In any event I would suggest that any recording of the conversation is ‘unintentional’, the intention being to record the video of the event and the audio immediately before and after the collision, if there is one.
And that brings me back to my earlier point as to this being a conservative approach. I think there could be arguments that these devices are not recording personal information and to the extent that they do that is unintentional, so they do no breach the Privacy Act. Agencies produce much data that is lost, note book scribbles, phone messages etc. Not everything that is produced is a ‘state record’ so not keeping recording where nothing happens does not, arguably, offend the State Records Act.
The use of a dash cam would be workplace surveillance but that is OK where the camera is obvious and it’s not the person’s regular workplace. That provision means if you have video surveillance and today someone who works in office A is asked to go to office B you don’t have to give all the notice as it’s obvious when you see the camera that surveillance is happening. Members who work out of a truck could be given notice but also, arguably, it’s not their regular place of work as that is the headquarters or even outside the truck. That might be stretching the imagination but then it’s all about risk management. How likely is that the regulator of the Workplace Surveillance Act is going to get concerned about the SES using a dash cam? If everyone’s happy about it and it’s used to prove the other driver was at fault, not very likely at all. If, on the other hand, the SES driver is being prosecuted and the Crown is relying on evidence in the video tape, the driver may well make complaints about surveillance that he or she was not warned about. IT may not go anywhere but it may muddy the waters.
As for data storage and record keeping that is relevant as there at least needs to be consideration of what use is made of the video and when and how and for how long it is to be stored.
What I mean by a conservative approach is, as I say, about risk management. One might think the risk of anyone being concerned about alleged breaches of the legislation listed above is very slight. And one can think of arguments to suggest that most of those provisions don’t apply. A person might think that for the benefit, they’ll run the risk that no-one will care and if they do they can argue that they didn’t break the law. That’s fine for a private individual and we all do it all the time, we weigh up the benefit of our action against the risk of the consequences and no doubt some chose to break the law, or come very close, because they think the benefit is worth the risk.
An example of that type of approach may be for an individual to buy their own dash cam and install it when they are driving in order to have their own recording to protect their own interests should that be an issue. There are arguments that this would remove most of those issues but those arguments are not necessarily correct – the driver is in SES uniform and driving an SES vehicle – he or she is the SES so it may be determined, if it were ever challenged, that the documents are still owned by the SES. And for that reason the SES may still want to direct that a dash cam is not to be used.
A conservative response, and perhaps one to be expected from a government agency that is not meant to ‘sail close to the wind’ is to say that no risk of being in breach is permissible. Clearly the use of dash cams does raise issues of privacy and whether the collection of private information by the camera is justified and permitted under the Privacy Act. It is workplace surveillance (given s 3) so signage is required to ensure compliance with the Surveillance Devices Act and the Workplace Surveillance Act. If one is going to produce this sort of recording where the clear intention is to have it for legal proceedings, consideration does have to be given to storage and how it is made accessible. The SES does have to consider the implementation of standards for the disposal of data and auditing of same. It may be that all of that can and should be managed, but until it is, there is a risk and perhaps a risk that can’t properly be identified because consideration of all those issues has not been completed. The SES response may be the ‘conservative’ response but it’s not wrong at least when the dash cams are owned by the unit rather than the driver of the vehicle. The Commissioner, on behalf of the SES is the one charged with managing that response and if he chooses to take the ‘no risk’ response then that is within the ambit of his office.
And the answer to the question ‘why can the police do it?’ is because the police (and the government) have thought about those issues and passed special legislation to allow them to use their body worn and camera mounted video equipment. That legislation applies to the police, it does not apply to the SES. ‘Why would the SES be any different?’ Because policing is a very different business to what the SES does.