Surveillance and Monitoring

1. Types of Surveillance

Surveillance and monitoring devices includes facilities such as CCTV (both with and without voice-recording) and baby monitors.

Baby monitors are regarded as a listening device unless they are being used to monitor the welfare of a baby when adults are not present, e.g. when a baby is sleeping during the day.

CCTV: is closed-circuit television system on a private network. Footage is monitored mainly for surveillance and security purposes. The system uses strategically placed cameras that send the images to monitors placed elsewhere.

The Information Commissioner’s Office advises that, whilst use of a domestic CCTV system may be appropriate, publicly uploading or streaming footage of identifiable people would need more justification. In most cases it would not be justifiable.

Note that audio-recording is considered as being particularly intrusive and so should be avoided unless there is a clear reason for it.

Monitoring of personal electronic devices: this includes monitoring the use of a child's own laptop, desktop, tablet, mobile phone or any other personal electronic device. This must be carried out with their permission.

It is permissible to monitor online activity if it relates to the use of filters and monitoring the effectiveness of those filters to protect children from exposure to inappropriate online material and contact.

(Please note: online filters should not be used as substitute for on-going discussions with children in the foster home about their online activity and how they can keep safe. See also: Internet, Photographs and Mobile Phones Procedure).

Covert Surveillance: Important note - only a court can sanction covert surveillance. This is where the monitoring of an individual is carried out in a way they are not aware of. This might include equipment such as hidden cameras and /or listening devices or secretly following the person. The Regulation of Investigatory Powers Act 2000 governs the use of covert surveillance by public bodies.

2. Using CCTV at your Home - Considerations

3. Use of CCTV Within the Foster Home

If you set up your system so it captures only images within the boundary of your private domestic property (including your garden), then the data protection laws will not apply to you. However, when considering any use of surveillance and monitoring in the foster home, it is important to balance the rights and freedoms of children, visitors and foster carers with the need for and purpose of the surveillance.

Think about what areas need to be covered.

Surveillance and Monitoring in Residential Childcare Settings (Ofsted, October 2019) provides guidance on the use of surveillance and monitoring equipment in children’s homes. Whilst not directly applicable to foster homes, it can be regarded as good practice guidance. This guidance provides that careful consideration should be given to the specific purpose and role of any surveillance and monitoring used in the home, including whether there are other, less intrusive, ways and means to keep children safe.

Children and young people should be informed (as early as possible after admission) about any monitoring and surveillance systems in use and the reasons for having it in the home, as well as the safeguards in place regarding confidentiality and the retention of images.

The Surveillance Camera Buyers Toolkit suggests completing the following prior to installation and use of a surveillance system:

Statement of Need

This should consider what is the purpose of the surveillance/monitoring, and could that purpose be achieved by other means? Is a surveillance/monitoring system the most appropriate solution?

Risk Assessment

This should consider what are the risks to data subjects raised by the deployment of surveillance cameras? Is the impact on individuals’ rights and freedoms proportionate to the problem you are addressing? Can the risks be reduced to an acceptable level?

The use of surveillance and monitoring systems within the foster home should be discussed prior to placement of children in the foster home, and its appropriateness considered in relation to any child to be placed in the foster home. Any amendments to the nature of the monitoring or surveillance must be discussed in advance with the placing authority. This information should be recorded in the child’s Placement Plan.

The following should be considered

The legitimate purpose and aim of the surveillance, with each purpose and activity individually addressed;
How the surveillance will keep children safe;
Why surveillance is the best way of achieving a child’s safety;
How any data is processed and stored;
What security measures are in place to safeguard against unauthorised access and use;
How often the surveillance activity will be reviewed to ensure that it is still necessary;
How surveillance and monitoring activities are agreed with the placing authority, parents, carers and children (if appropriate);
How others (for example, health visitors) are notified that they are being recorded.
What to do when people ask for access to recordings;
How and when to share information;
What to do if there are complaints about surveillance;
What to do if children or parents withdraw their consent to surveillance.

4. Use of Monitoring and Surveillance Outside the Foster Home - Protection of Freedoms and Data Protection

If the system captures images of people outside the boundary of your private domestic property – for example, in neighbours’ homes or gardens, shared spaces, or on a public footpath or a street, then the General Data Protection Regulation (GDPR) and the Data Protection Act 2018 (DPA18) (the ‘data protection laws’) will apply, and you will need to ensure your use of CCTV complies with these laws. Good practice includes consulting with anyone who may be affected by the surveillance before its installation.

As the CCTV user, you are a ‘data controller’ and will need to comply with your legal obligations under the data protection laws.

You can still capture images, but you need to show you are doing it in ways that comply with the data protection laws and uphold the rights of the people whose images you are capturing.

If you are capturing images beyond your property boundary, you should have a clear and justifiable reason for doing so. In particular, you will need to think why you need these images. If asked by an individual or the ICO, you will need to be able to explain your reasons, so you should write them down. You should also write down why you think capturing the images is more important than invading the privacy of your neighbours and passers-by.

You will also need to:

Let people know you are using CCTV by putting up signs saying that recording is taking place, and why;
Ensure you don’t capture more footage than you need to achieve your purpose in using the system;
Ensure the security of the footage you capture – in other words, holding it securely and making sure nobody can watch it without good reason;
Only keep the footage for as long as you need it – delete it regularly, and when it is no longer needed;
Ensure the CCTV system is only operated in ways you intend and can’t be misused for other reasons. Anyone you share your property with, such as family members who could use the equipment, needs to know the importance of not misusing it.

You also need to make sure you respect the data protection rights of the people whose images you capture. This includes the following things:

Responding to subject access requests (SARs), if you receive any. Individuals have a right to access the personal data you hold about them, including identifiable images. They can ask you verbally or in writing. You must respond within one month and give them a copy of the data;
Deleting footage of people if they ask you to do so. You should do this within one month. You can refuse to delete it if you specifically need to keep it for a genuine legal dispute – in which case you need to tell them this, and also tell them they can challenge this in court or complain to the ICO;
Consider any objection you get now from particular people about capturing their image in the future. Given the nature of CCTV systems, this may be very difficult to do. However, you should again think whether you need to record images beyond your property boundary – particularly if your system is capturing images from a neighbour’s home or garden;
Surveillance/monitoring systems which covered neighbouring properties, albeit unintentionally, could be CCTV cameras and also features such as ‘smart’ doorbell cameras. Care should be taken to check the range of any such devices, and it should be noted that such devices are likely to capture audio footage at a greater range than video footage, therefore care must be exercised if audio capture is enabled on external devices.

The Surveillance Camera Buyers Toolkit contains an example of a Privacy Notice to inform people about surveillance.

5. Storage of Surveillance Information

You don’t need to register with the ICO or pay a fee. However, you must maintain records of how and why you are capturing these images, and for how long you are keeping them. You may need to make these records available to the ICO on request.

Images, and information should be stored securely, for their stated purpose, and only for as long as necessary;

Security arrangements for sharing footage, for example, when used as evidence in court hearings, should be discussed with the placing authority.