Commentary
IPP 1.3 – Organisation must provide a collection notice
Factors VCAT may consider relevant to determine whether an organisation has taken ‘reasonable steps’ to make an individual aware of the matters listed in IPP 1.3
- This decision illustrates some of the factors VCAT may consider when determining whether an organisation has taken ‘reasonable steps’ to make an individual aware of the matters listed in IPP 1.3, these include:
- whether the organisation has previously made the individual aware that they have collected their personal information (in this case Mr Kaliszewski had been the subject of two prior misconduct investigations where CCTV had been used to investigate and exonerate him);
- the fact that the method of collection (in this case CCTV cameras) is clearly visible and wide-scale (there were multiple CCTV cameras which were not concealed); and
- whether the organisation has a policy on the collection of personal information which it has brought to the individual’s attention (in this case the Department of Community Safety (Department) had a Policy on CCTV protocols and retention periods (Policy)).
Facts and decision
- Mr Kaliszewski was employed by the Department as a prison officer and worked at Hopkins Corrections Centre (HCC).
- In 2017, the Department investigated Mr Kaliszewski’s performance and discovered (through CCTV footage) that he had jeopardised the security of HCC on three occasions by spending excessive amounts of time in the break room during his shifts. The Department found the Mr Kaliszewski guilty of misconduct and demoted him from senior prison officer.
- Mr Kaliszewski alleged that the Department interfered with his privacy because his supervisor did not have any knowledge of any incident or claim of misconduct about the him, rather, the supervisor had accessed HCC’s CCTV footage system and monitored him for evidence to incriminate him.
IPP 1.3 – Organisation must provide a collection notice
Submissions
- Mr Kaliszewski alleged that the Department interfered with IPP 1.3 as it did not take reasonable steps to provide him with notice of the collection of his personal information via the CCTV footage. Mr Kaliszewski contended that the Policy did not talk about whether employee monitoring was permissible and that permission of the general manager was required before monitoring prisoners, so a reasonable conclusion to draw was that the same permission would be required for employees.
- The Department contended that there was no interference with IPP 1.3 because Mr Kaliszewski knew that his personal information was being collected by them through the CCTV because:
- it was well known amongst prison staff that CCTV footage was used to safeguard the security of HCC as well as investigate allegations of incidents and misconduct by prisoners, guests and employees, Mr Kaliszewski was aware of this given the high occurrence;
- Mr Kaliszewski had been the subject of two prior misconduct allegations and on both those occasions had been informed that CCTV footage had been examined to investigate complaints made against him; and
- that the CCTV cameras were not disguised and clearly visible.
Decision
- VCAT held that there was no interference with IPP 1.3. VCAT applied the principle from Jurecek v Director, Transport Safety Victoria [2016] VSC 285 (see case note) that an organisation may have taken reasonable steps where it makes an individual aware of its collection for one purpose that at the same time happens to ensure that the individual is made aware of other purposes.
- Applying this principle, VCAT considered that the Department had taken reasonable steps to notify Mr Kaliszewski when it collected his personal information on two prior misconduct investigations and as part of supplying him with the Policy.
- VCAT also rejected Mr Kaliszewski’s position regarding the lack of information about employee monitoring in the Policy because the deficiencies were rectified by Mr Kaliszewski having previously been informed of the collection of his personal information through the CCTV as part of the Department’s investigation of two other misconduct allegations made against him.
IPP 2.1 – Use or disclosure
Submissions
- Mr Kaliszewski alleged that the Department interfered with IPP 2.1 when it viewed the CCTV footage and used it to investigate his alleged workplace misconduct given no allegations of misconduct had been made about him.
- The Department alleged that the use of the CCTV footage was authorised under:
- IPP 2.1 – the primary purpose of collection was to maintain the security of HCC and this was the use the CCTV footage had been put to, to take disciplinary action against an employee who threatened that security; or
- IPP 2.1(a) – if taking disciplinary action against an employee who threatened the security of HCC was a secondary purpose, then this was closely related to the primary purpose as both were aimed at ensuring the security of the prison.
Decision
- VCAT held that the use of the CCTV footage was authorised under IPP 2.1(a):
- primary purpose – VCAT agreed with the Department’s position that the primary purpose was maintaining the security of HCC;
- related and reasonably expected secondary purpose – VCAT held that the secondary purpose was to investigate allegations of misconduct within the prison and that this was related and reasonably foreseeable because of the “inextricable and undeniable” link between the primary and secondary purposes.
Section 15 – Exemption for law enforcement
Submissions
- The Department contended that it was not required to comply with IPP 1.3 and IPP 2.1 because it was exempt under s 15 of the PDP Act:
- law enforcement agency – the Department contended that at its core, a prison like HCC is a law enforcement agency with powers and duties as prescribed by the Corrections Act 1986 (Vic.); and
- law enforcement functions – the Department contended that maintaining the security of HCC was one of its law enforcement functions.
- Mr Kaliszewski alleged that the exemption did not apply unless the Department had prior knowledge that an employee had committed or was intending to commit an offence and, in this case, the supervisor did not have such knowledge.
Decision
- VCAT did not make a decision or any substantive analysis of whether the exemption in s 15 applied because it had found that there was no interference with IPP 1.3 and 2.1.