Police unlawfully taking, using and keeping photographs of children …

The Independent Police Conduct Authority (IPCA) and the Office of the Privacy Commissioner (OPC) have recently published their Joint Inquiry into Police photographing members of the public.

The inquiry followed a series of complaints which started after a member of the public complained to the Police regarding photographs taken of them and their young family members.

The Inquiry found that this photographing was unnecessary for any policing purposes, and was therefore unjustified under the Privacy Act.  The Police had also failed to consult the family or acquire consent to take the photographs.

The Joint Inquiry emphasises that the Police have obligations under the Privacy Act which they must follow when conducting their duties. However, the Inquiry found that in general, police officers have inadequate knowledge of their duties in relation to privacy, especially in regards to the photographing of children.

Children and youths have protections in New Zealand under the United Nations Convention on the Rights of the Child and the Oranga Tamariki Act. These protections mean that children cannot be photographed in the same way as other members of the public. Children have special vulnerabilities which entitle them to have their interests protected regarding potential offending and criminal records.

In terms of photographing, the Inquiry held that there are certain elements of fairness which must be upheld for children and youths. This includes gaining the consent of the child, or their whānau if they are under 14, as well as an explanation of the purpose of the photographing and what the photographs will be used for. The child must also clearly be given the opportunity to consent, which often is not given by the Police.

The Inquiry recommended that the Police ensure these protections are upheld by officers, particularly in explaining why photographs are being taken and obtaining consent from the child.

The Police have taken steps to ensure that officers are compliant with these obligations. A compliance notice has been issued requiring that duplications of photos and prints of young people are no longer made. The Police are routinely checking in with the OPC for updates regarding the compliance notice and other recommended steps by the OPC.

There can be serious legal consequences if privacy is not respected. If you are unsure of your obligations regarding privacy law, it pays to seek advice from a professional experienced in the area.

Leading law firms committed to helping clients cost-effectively will have a range of fixed-price Initial Consultations to suit most people’s needs in quickly learning what their options are. At Rainey Collins we have an experienced team who can answer your questions and put you on the right track.

Alan Knowsley and Hunter Flanagan-Connors