Today’s correspondent is a
… deputy Group captain and sometimes need to be able to provide information after an incident. As I age I find it more difficult to recall details of incidents as they unfold. Particularly in the first few minutes and extending to hours if it is a multi-day incident. Sometimes the early information is important. I have discovered my Phone will record hours of stuff on voice recording and it seems to me that this could be useful. Where do I stand from a legal point of view sound recording all that is happening? Do I need a sign on my front? I am far too busy to advise everyone. If I don’t advise can I use the sound recording as my electronic notes? Does the lack of advice just mean that I can’t use it as evidence
Little if any of what would be captured would be considered “private conversation” but would be Radio messages, instructions to others, Planning conversations, and would have a great advantage of “notes to self”.
Recording the information as ‘notes to self’ is probably a very good idea, but legally fraught. For a related discussion see Dash cams and NSW SES (February 25, 2018).
As noted elsewhere in this blog, it is an offence to record a private conversation except where the recording ‘is reasonably necessary for the protection of the lawful interests’ of the person making the recording and the recording’ or it ‘is not made for the purpose of communicating or publishing the conversation, or a report of the conversation, to persons who are not parties to the conversation’ (Surveillance Devices Act 2007 (NSW) s 7). Recording any private conversation is probably not ‘reasonably necessary’ to protect the ‘lawful interests’ of the group captain just because it is intended to rely on them to make notes at a later time. Further if the purpose is to make notes for the purposes of after action reviews etc then the purpose is to publish the conversation or a report of the conversation to someone who is not a party to that conversation. As for the consequences see the article by Mark Reddie and Lorna Knowles, ‘William Tyrrell case detective Gary Jubelin charged with misconduct’ ABC News (Online) 21 June 2019.
Recording a private conversation is not an offence if the recording is incidental that is ‘the unintentional hearing of a private conversation by means of a listening device’ (s 7(2)(c)). To the extent that the purpose is not to record private conversations but it does record one say between two people, not including my correspondent, then that is not an offence.
Putting aside the issue of private conversations the issue is complicated by who owns the recording. If my correspondent is recording in his or her capacity as an RFS Group Captain then arguably the recording forms part of the RFS’ records with the result that it should be produced in response to a subpoena, notice for discovery, application under the Government Information (Public Access) Act 2009 (NSW) or other legal proceedings. That is not objectionable save that the RFS won’t know it exists and so may not be able to meet its obligations to produce the recording.
Making those sort of recordings may be a good idea but it would be ideal if it was done using a recording device provided by the RFS where the RFS could manage the storage of the recording. Having said that there must be many records that are produced that the RFS doesn’t know about, any notes written in anyone’s notebook would fall into that category. Hopefully when the RFS gets requests for documents it does ask those that were there if they have any documents – an organisation the size and distribution of the RFS cannot possibly believe that they capture all information recorded about an event. If that is the case my correspondent could produce the recording and could also ensure that it is downloaded onto RFS servers should that be required.
An alternative, which really is to create ‘notes to self’ is not to have the recorder on all the time recording everything, but to use to indeed record ‘notes to self’, ie turn it on when talking through options and ‘thinking out loud’ and then capture his thoughts alone. That still creates record keeping problems but would be less problematic.
It’s not a new idea that constant audio recording is an excellent way to capture what is happening, what is being said and thought, but recording is not without its problems. Apart from the Surveillance Devices Act 2007 (NSW) there are issues with workplace surveillance and public record keeping. To a certain extent the issue is, like so much, one of risk management and considering the potential benefit against the potential risk. The recording itself is not illegal but how will the record be kept, maintained and made available as a record of a public institution. The ideal response would be to raise it with the RFS and seek a service response either to provide recording equipment or at least provide a way to log records that are made if officers chose to do so.