JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: PUBLIC TRANSPORT AUTHORITY [2018] WASC 47
CORAM: SMITH AJ
HEARD: 16 JANUARY 2018
DELIVERED : 16 FEBRUARY 2018
FILE NO/S: GDA 7 of 2017
MATTER :Freedom of Information Act 1992 (WA)
BETWEEN: PUBLIC TRANSPORT AUTHORITY
Appellant
ON APPEAL FROM:
Jurisdiction : OFFICE OF THE INFORMATION COMMISSIONER
Coram :S BLUEMMEL (INFORMATION COMMISSIONER)
Citation :RE SEVEN NETWORK (OPERATIONS) LIMITED AND PUBLIC TRANSPORT AUTHORITY [2017] WAICmr 12
Catchwords:
Freedom of information - Exempt matter - Freedom of Information Act sch 1 cl 3(1) - Whether CCTV footage contained personal information - Construction of expression - 'Information about an individual whose identity is apparent or can reasonably be ascertained from the information'
Legislation:
Freedom of Information Act 1992 (WA), s 10, s 23(1), s 86(3), sch 1 cl 3(1), cl 3(2), cl 3(3), cl 3(6)
Result:
Appeal allowed
Category: B
Representation:
Counsel:
Appellant: Mr D E Leigh & Mr J M Carroll
Solicitors:
Appellant: State Solicitor for Western Australia
Case(s) referred to in judgment(s):
AIN v Medical Council (New South Wales) [2016] NSWCATAD 5
Healy and BZ and Department of Immigration and Border Protection [2014] AICmr 55
Murdoch v The Queen [2007] NTCCA 1
Office of Finance and Services v APV [2014] NSWCATAP 88
Police Force of Western Australia v Ayton [1999] WASCA 233
Re Lobo and Department of Immigration and Citizenship [2011] AATA 705; (2011) 124 ALD 238
Re West Australian Newspapers Ltd and Department of the Premier and Cabinet [2006] WAICmr 23
WL v La Trobe University [2005] VCAT 2592
SMITH AJ:
The appeal
This is an appeal against a decision made by the Information Commissioner on 26 May 2017. The appeal turns on whether the Commissioner erred in law in determining whether three disputed documents, each being CCTV footage, are exempt from disclosure by the appellant.
Section 10 of the Freedom of Information Act 1992 (WA) (FOI Act) provides that a person has a right to be given access to the 'documents of an agency' (other than an exempt agency) subject to, and in accordance with, the FOI Act. Section 23(1) of the FOI Act provides that an agency may refuse access to a document if the document is an 'exempt document'. An 'exempt document' is defined in the glossary to mean a document that contains 'exempt matter'. 'Exempt matter' is, in turn, defined to mean 'matter that is exempt under Schedule 1'.
Clause 3(1) of sch 1 provides:
Matter is exempt matter if its disclosure would reveal personal information about an individual (whether living or dead).
'Personal information' is defined to mean in cl 1 of the glossary:
information or an opinion, whether true or not, and whether recorded in a material form or not, about an individual, whether living or dead ‑
(a)whose identity is apparent or can reasonably be ascertained from the information or opinion; or
(b) who can be identified by reference to an identification number or other identifying particular such as…
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- AGLC
- PUBLIC TRANSPORT AUTHORITY [2018] WASC 47
- Case
- [2018] WASC 47
- Decision Date
CaseChat Overview and Summary
The central legal issue was whether the CCTV footage contained personal information, which would make it exempt from disclosure under the Act. The Court had to consider whether the quality of the footage was such that neither an individual's face nor their identifying features were clear, or if the individual's image was pixilated, obscured or blurred. The Court also had to consider whether the identity of the individuals in the footage could reasonably be ascertained from the footage.
The Court held that the Commissioner's approach to determining whether footage contained personal information was flawed. The Commissioner had only considered the first and second classes of cases, where either the individual's face was clear or other identifying features were clear in the footage. However, the Commissioner did not consider the third class of case, where neither the individual's face nor their identifying features were clear in the footage. The Court held that in such a case, disclosure of the footage would not necessarily disclose personal information about the individual. The Court also held that the Commissioner's concern that it might never be possible to provide an edited copy of footage with an individual's image pixilated or obscured was misplaced. A matter was not exempt if its disclosure would, on balance, be in the public interest.
The Court set aside the decision of the AAT and remitted the matter to the AAT for reconsideration in light of the Court's decision. The AAT was to consider whether the CCTV footage contained personal information and whether its disclosure would, on balance, be in the public interest.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
The Commissioner appeared to distinguish a third class of case where the quality of footage is such that neither an individual's face, nor their identifying features are clear in an image or when that individual's image is pixilated, obscured or blurred (the third class). In such a case he was of the opinion that disclosure of that footage would not necessarily disclose personal information of that individual. He referred to decisions in other jurisdictions which seem to accept that if an individual's image and footage is pixilated then disclosure of that footage would not disclose personal information about that individual which included, Healy and BZ and Department of Immigration and Border Protection [2014] AICmr 55. The Commissioner did not explain why he formed the view that if it is only the individual themselves and/or family members or friends who know them who could potentially ascertain their identity from the contextual information known to them, that would not result in a finding that the identity of the individuals in question can reasonably be ascertained from the footage. It appears the Commissioner only contemplated that this test should apply where a person's face is not clear in footage but where other identifying features such as clothing and accessories are (the second class). It appears clear from his decision that the Commissioner did not consider it relevant to ascertain the number of persons who could identify a person where an individual's face or other identifying characteristics are clearly visible in CCTV footage (the first class). With respect, the difficulty with this analysis is that it does not address whether the identity of an individual can reasonably be ascertained if an individual whose image is shown in a video is a traveller from overseas, who has just arrived in Western Australia for the first time, and is not known to any other persons in this State. The Commissioner did, however, make it clear in his decision that his view was at least partly motivated by a concern that it might never be possible for access to be given to an edited copy of footage with an individual's image pixilated or obscured. This is because the footage would still disclose personal information as the individual themselves would know, or may know, that it is their image that has been pixilated. As counsel for the appellant points out, the Commissioner's concern is misplaced. A matter is not exempt, under cl 3(1) of sch 1, if its disclosure would, on balance, be in the public interest: cl 3(6) of sch 1. Accordingly, even if edited footage contained personal information (because the identity of an individual captured in the footage could still reasonably be ascertained from the edited footage), that edited footage might not be exempt under cl 3(1) if its disclosure would, on balance, be in the public interest. Whilst I accept in some matters the length of time that has passed since an incident has been recorded in CCTV footage may be relevant in some circumstances, I do not accept that is necessarily a relevant matter in relation to PTA 11 or PTA 39.