Can I surreptitiously record a conversation if I want proof of what actually happened in the situation?

Question Details: Some allegations were made against me after a disagreement during a group meeting at work. I know that they were not true. At the moment it is my word against the others - there was no objective party that heard what happened. I feel I'm being ganged up on and I'm worried that further complaints may be made against me. Can I record the next conversation in case there are further complaints so I can prove to my superiors that I'm not in the wrong?

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Answers by Lawyers

Community Law Wellington & Hutt Valley

If you have a good reason for recording, it is not a crime to record the audio of a conversation you are part of without informing others. BUT you may risk breaching your employment agreement, which could have serious consequences for you, including losing your job.

In general, whenever you are collecting personal information about other people (recording a conversation is likely to count as collecting personal information), you should follow the Information Privacy Principles of the Privacy Act, set out here: www.legislation.govt.nz. These restrict how you collect, store, and use information.

Breaching any of the Information Privacy Principles may result in an investigation by the Privacy Commissioner. You may also face civil court actions (under the Privacy Act or in tort) by people affected by your actions, requiring you to pay them damages (i.e. money).

It is not a crime to surreptitiously record the audio of a conversation you are a part of.

Based on the information you have provided, it appears that you probably will not breach any laws if you record your next conversation at work during a group meeting, because recording appears to be necessary to protect your lawful interests. So you have a good reason for recording the conversation. However, before recording, we strongly recommend that you read, and ensure you comply with, the Information Privacy Principles.

We also caution that you may breach your employment agreement with your employer by recording this conversation. You owe a duty of good faith to your employer under the Employment Relations Act. Surreptitiously recording a conversation may be a breach of this obligation of good faith, although whether it is a breach will depend on each different scenario (including any alternative options in the circumstances). You may face dismissal from your job as a consequence.

Privacy law, including this particular issue, has recently been reviewed by the Law Commission, and the Government may introduce changes based on their recommendations. The Commission has recommended that it remain legal to surreptitiously record any conversations you are a part of, although it has recommended further restrictions be placed on this. To view the Commission's recommendations, please see pages 48-51 of Part 3 of their Review, available here: www.lawcom.govt.nz

Please consider visiting your local Community Law Centre to discuss your employment situation. You can find your local Community Law Centre here: www.communitylaw.org.nz

Answered 3 Oct 2012. The IMPORTANT NOTICE below is part of this answer.

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