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Case Note 5169 [1998] NZPrivCmr 11: TVNZ refuses defendant access to videotape of trial

A black camera stands on a tripod. TVNZ made a videotape during a criminal trial and screened an extract, with the defendant's face obscured, in a news item. The defendant asked for access to all of the videotape about him, including the unscreened portion, held by TVNZ. TVNZ refused to provide the material and the man made a complaint to me.

As the man had been granted a suppression order, TVNZ said it needed the court's approval to release the videotape to him. Given the fact that the man requesting the videotape was the person protected by the suppression order, we were not convinced that releasing it would have contravened the order. The Commissioner was not required to form an opinion on this point because the suppression order was lifted during our investigation and TVNZ agreed to release the images of the man, which had been screened.

TVNZ continued to withhold the unscreened images. This included a portion showing a brief glimpse of the man although he was mostly obscured by other people. TVNZ said the videotape was part of an ongoing news event, so release could affect the commercial operations of its news division. We were not satisfied that TVNZ had a proper basis to withhold the information in these circumstances, and TVNZ agreed to release the unscreened images of the man.

TVNZ continued to withhold background videotape which had been shot in connection with the trial but did not contain images of the man. There was no voiceover, so the videotape could not be linked with him. We formed the opinion that this was not personal information about the man, so he was not entitled to it under the Privacy Act.

TVNZ wished to charge for making the videotape available. Section 35(1)(e) of the Privacy Act prevents public sector agencies from requiring the payment of a charge for making information available in compliance with a request under principle 6. TVNZ is a public sector agency, so it is subject to s 35(1)(e). After we pointed this out TVNZ made the sections of the videotape in which the man appeared available to him, free of charge.

We discontinued my investigation on the basis of this resolution.

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