Despite a damning investigation, police have not been given a directive to stop taking pictures of adults in public, and they are wondering where the line has been drawn for illegal practices.
An 18-month investigation by the privacy and police watchdogs, triggered by RNZ reporting, found that police have routinely and illegally taken tens of thousands of photos of ordinary New Zealanders for years.
They have now stopped taking such photos of juveniles and adults in custody and have removed 6,000 photos, Police Commissioner Andrew Coster said.
But the compliance statement issued nine months ago that compelled them to do so does not cover older adults in public.
“I didn’t give any new direction on the back of the report yesterday as we need to understand it and it will take some time for us to do that,” Coster told RNZ in an interview on Friday.
“We have complied with the notice issued to us but, as I said, we do not necessarily accept the implications of the report we have received.”
The investigation found that people’s biometric images were primarily captured by agents on their smartphones, despite not being linked to any particular investigation, sometimes on a “hunch,” or in violation of privacy law; that the photos had been kept by the police for far too long and were stored in such a way that investigators were unable to estimate the full extent of the breach.
“The investigative team learned that these photos were routinely kept, culminating in some officers reporting having thousands of images on their phones,” the report said.
“Officers interviewed by the investigation team reported that both personal and work-related photos were kept on the same mobile devices.
“Images include scenes from attending various incidents, including car accidents and sudden deaths. There are no clear guidelines on how long to keep photos on phones or what to do with them.”
Findings curb crime-fighting – Coster
Coster said the investigation was already slowing his officers in tackling crime, and that taking photos was important to investigations.
Since complying with the OPC notice this year, staff reported “significant challenges around crime detection and solving, particularly involving young people,” he added.
The fact that the report revealed how the photos were stored on multiple systems and in masses of smartphones, without categorization, didn’t affect any investigation, he claimed.
“I am confident that the staff, where photos are relevant, have used them for those purposes and attached them to the relevant cases.
“But we have to automate that.
“As anyone who has an iPhone knows, you get an accumulation of material on it, and it requires the user to get rid of what is no longer needed. We need to systematize that, and that’s the piece that is currently missing from our systems.”
The Office of the Privacy Commissioner – OPC – issued the compliance statement to the police last December.
When asked by RNZ why the post doesn’t refer to pictures of adults taken in public – either to stop taking them, or to remove them from police systems – the OPC said it had other priorities early on.
“The compliance statement has a specific focus on the photographing and double fingerprinting of juveniles, and the use of cell phones to photograph adults in custody,” the OPC said.
Coster said they fully complied.
Some practices had to change around some of the shooting conditions, he said, but added:
“We accept some of that, but there are aspects that we don’t — because of where the line is drawn in terms of that threshold for collection for crime prevention, investigative purposes.”
The report’s recommendations had “pretty significant” implications, he said, going on to mention gangs and ram raids.
“And there we will seek further legal advice.”
The report said that gang members were part of the illegal photo shoot, but so were many ordinary people who were stopped by the police, such as at checkpoints and traffic stops.
The main union, the Police Association, has said the findings were wrong and officers should continue taking photos.
Amnesty International said the report raised serious concerns about police profiling of young Māori.
Half of the tens of thousands of photos in just one database were of Māori or rangitahi, and it was the complaints of rangitahis in Wairarapa that exposed the police practices.
The police have made a bimonthly complaint to the Privacy Commissioner about making changes and deleting photos. Neither entity provided these reports Thursday in response to RNZ requests.
RNZ has further asked the OPC whether it would issue a new compliance statement to end the collection and storage of adult photos.
No decision has yet been taken on further enforcement measures.
“We expect that inappropriate collection and preservation of adult photos will be addressed through the implementation of the investigative report,” Deputy Commissioner Liz MacPherson said in a statement, adding that they will monitor it.
Anyone with concerns can file a complaint with the OPC or IPCA, she said.
The OPC said the existing compliance statement already required police to develop photo removal procedures by the end of 2023 and to set up an audit system by the end of this year, which would benefit both young people and adults.
The report found that police officers were unaware of their obligations under the privacy law when taking photos.
Coster both said his officers were “generally” compliant with the law, but also needed more training.
The report details how iPhones quickly became officers’ first-line tools after they were released in 2013.
Nine years later, the report found: “Officers almost universally described a lack of training or guidance focused on when it is lawful and appropriate to photograph or record members of the public for the purpose of identification outside the crime scene.”
It found no policy around the iPhones.
The phones link directly to the National Intelligence system – where pictures can be posted, and which they purge if they’re irrelevant.
But agents have circumvented that by not forwarding photos, or keeping duplicate copies on their phones or putting them in other systems.
“We haven’t developed any processes,” Coster said.
“We have a lot of work to do to resolve that situation.”