Police took and stored thousands of unlawful photos - inquiry

A major policing investigation has found officers have been routinely photographing members of the public unlawfully and have thousands of pictures stored on their mobile devices and computers that have no legitimate purpose.

Police officers (file picture).

The findings have been made by the Office of the Privacy Commissioner and the Independent Police Conduct Authority (IPCA), which launched an investigation in 2020 after media reported several innocent young Māori were stopped and photographed in Wairarapa.

"This will have been going on for at least a decade," said Privacy Commissioner Liz MacPherson

"The police rolled out the use of digital smartphones about 10 years ago. Unfortunately, that was not accompanied by good training and procedures. So, as a consequence, it will have been over that period of time people were taking these photographs without this guidance," she said.

The two authorities considered five individual complaints in which whānau claimed police had photographed young Māori in circumstances they felt was unfair or unjustified.

READ MORE: Police set new rules after young Māori unlawfully photographed

Two of the cases were dismissed due to their historic nature, but in the three remaining cases, Police were not justified in photographing rangatahi, as the photographs were not necessary for a lawful policing purpose.

The consent of these young people was also never sought.

A police officer involved in one of the incidents unlawfully threatened to arrest a Māori youth if they refused to be photographed.

"In respect to that particular finding, again, there was no lawful purpose for the officer involved to have made that statement to the young person," said MacPherson.

Whānau who participated in the investigation described how police actions made their loved ones feel whakamā or ashamed, and some believed racial bias was an underlying factor.

Understand biases

One whānau mentioned that in order to bring closure, they would like Police to whakautu (respond) by committing to training across the organisation to identify and understand their biases.

The report briefly addresses the issue of unconscious bias, saying while this was not within the scope of the inquiry, all the affected youth spoken to by the Privacy Commissioner and the IPCA were Māori.

It also found over half of the photographs collected by police for intelligence purposes were Māori.

Police have already commissioned an independent research programme focused on understanding the role of bias within police policies, processes and practices entitled Understanding Policy Delivery.

The broader investigation found that while police had legal grounds to photograph young people in custody, officers had developed an unlawful practice of regularly taking duplicates of photographs and fingerprints of young people, who had given their consent, on their mobile phones.

Police have then stored these duplicates for a longer period than legally permitted under the Policing Act.

The authorities were told that the reason officers took duplicate photographs and fingerprints was because they were an important tool in reducing youth offending, in that youth were "less likely to offend if they know that their photographs and fingerprints were on file".

Police could not provide sufficient evidence to support this claim.

The Privacy Commissioner and the Independent Police Conduct Authority noted that even if evidence did exist, this would not justify a practice not permitted under the law.

Police officers can legally photograph members of the public at traffic stops under the Land Transport Act, including when an infringement notice is being issued and the driver’s identity is not able to be ascertained in other way. But the report found officers have instead used traffic stops at times to gather intelligence, including photographs, which the investigation found was generally unlawful.

MacPherson said: "It's very simple. When police officers are in uniform and operating as police officers, they are not members of the public. They are an agency under the Privacy Act, they are 'the police', and as a consequence, they have to meet a higher standard."

The investigation found that there was a widespread belief amongst officers that there is no difference between photographing adults or youths for intelligence-gathering or investigative purposes, despite children and young people having special protections in the criminal justice system, including under the Oranga Tamariki Act.

Police actions were found to be largely inconsistent with those protections.

Many officers were found to mistakenly see consent as allowing them to collect personal information, including photographs and prints, in situations where the law does not otherwise allow them to do so.

"It is not possible to use consent as a way of getting access to something that is not lawful for you to collect in the first place," said MacPherson.

In December last year, the Deputy Privacy Commissioner issued a compliance notice to Police, ordering them to stop collecting duplicate photographs and fingerprints from young people and delete all unlawfully collected images.

Police have complied and are reporting regularly on their progress with the compliance notice.

The Privacy Commissioner and the IPCA said the unlawful collection and retention of photographs by police have occurred because there is a general lack of awareness amongst police of their obligations under the Privacy Act.

The report recommends a complete overhaul of police privacy practices and policies, to ensure that they only photograph members of the public where there is a specific statutory authorisation or full compliance with the information privacy principles.

The report uses a Ngāti Awa whakataukī or proverb, Waiho, mā te whakamā e patu, to summarise its findings. It refers to the whakamā or shame that rangatahi and whānau have experienced as a result of police photographing rangatahi without following correct procedure.

"In order to restore balance, the whakamā needs to shift from whānau to police in acknowledging the impacts of their actions," the report says.

MacPherson acknowledged all the whānau involved.

"We were really humbled by the whānau and the rangatahi who brought their stories forward. They want to see change and our hope is that this report will create a real platform for change."