There is currently an appeal underway before the Information and Privacy Commissioner of Ontario (IPCO) which raises an important issue relating to body-worn camera footage and which may have greater implications over how we apply exemptions and exclusions to records in general.
As reported by Tom Cardoso and Robyn Doolittle in the Globe & Mail, Hasani O’Gilvie, a Black University of Toronto student, alleges that in August 2021, three officers mistook him for someone else, tackled him, put a knee on his neck and tasered him. O’Gilvie is represented by “Biking Lawyer” Dave Shellnutt, who submitted a Freedom of Information request to the Toronto Police Service (TPS) for the officers’ body-worn camera footage of the interaction.
TPS replied with a decision letter citing section 52(3) of the Municipal Freedom of Information and Protection of Privacy Act (MFIPPA), which states:
[MFIPPA] does not apply to records collected, prepared, maintained or used by or on behalf of an institution in relation to …
1. Proceedings or anticipated proceedings before a court, tribunal or other entity relating to labour relations or to the employment of a person by the institution.
MFIPPA, s. 52(3)
As covered in a previous article, the Freedom of Information and Protection of Privacy Act (FIPPA) contains a similar exclusion it its section 65(6). (See When is labour and employment information exempt from disclosure? for more details.)
The TPS decision letter then explained:
it has been determined, upon further review of your request and the circumstances surrounding the incident involving your client, that the responsive records are currently related to a labour matter in which our institution has an interest. As such, disclosure of the responsive body worn camera audio/video record cannot be released at this time as the record currently falls outside the auspices of the Act.
Toronto Police Service FOI decision letter re: “Incident on August 12, 2021” dated November 11, 2022
The full decision letter is available for review immediately below:
This decision letter raises an important issue, specifically, on what basis could the body-worn camera footage be considered a record “prepared, maintained or used by or on behalf of an institution in relation to proceedings or anticipated proceedings before a court, tribunal or other entity relating to labour relations or to the employment of a person by the institution” and therefore subject to exclusion from disclosure in response to a Freedom of Information request?
I see only three possibilities, each of which I discuss further below.
Is All Body-Worn Camera Footage Prepared for Use in Employment Proceedings?
Under this theory, all body-worn camera footage of police officers is prepared with the intention that it will be used in employment proceedings. There is certainly some truth to this statement; police services and police officers themselves understand that the footage from officers’ body-worn cameras can be used in both positive and negative ways with respect to the officers’ employment. Body-worn camera footage may serve as a record of proper adherence to procedure, excellent competence or even exemplary performance in a crisis, potentially leading to a commendation or promotion. Alternatively, body-worn camera footage may provide evidence of poor judgment or misbehaviour, potentially leading to reprimand, disciplinary action, or other employment consequences.
Of course, many other kinds of records serve this same purpose without being categorized as “labour and employment” records. As one example, correspondence transcribed by an executive assistant may be later be used as evidence as to the quality of his work, yet we would not consider such records to automatically be “labour and employment” information on this basis alone. Or a security camera may record an employee stealing materials from an office, but we would not consider all security camera footage to be “labour and employment” information on this basis.
The closest example may be officers’ notes, which generally describe events and statements in a manner that may be compared to way events and statements are captured by a body-worn camera. (In fact, the Toronto Police Service Body-Worn Camera Frequently Asked Questions page suggests that officers may wish to use their body-worn camera footage when preparing their notes: “If, after reviewing the video, an addition to the notes is needed, an addendum can be done that includes a reference to the review of body-worn camera footage.”)
Clearly, officers’ notes can and will be used for many of the same purposes as body-worn camera footage, including use in employment proceedings, yet as noted by the Information and Privacy Commissioner of Ontario, officers’ notes are generally subject to disclosure under Ontario’s Freedom of Information laws:
Commonly requested records include:
– incident and investigation reports,
– witness statements,
– Crown or police briefs,
– records of arrests,
– officers’ notes and
– police-related 911 calls.Many people think that they cannot request a police officer’s notes, but a police notebook is generally in the custody or control of the police service and is subject to freedom of information requests.
IPCO, How to Access Your Police-Held Records (October 14, 2015)
(Note the IPCO guidance document above was released before body-worn cameras were in common use by police services in Ontario; the Toronto Police Service itself only received approval for its service-wide body-worn camera program on August 18, 2020.)
Why are officers’ notes not considered labour and employment information? It must be because the primary purpose of officers’ notes is not to judge the competence of the officers involved in an event, but rather, to aid in the pursuit of justice generally. The fact that officers’ notes may be used in an employment proceeding is merely incidental. By extension, the same argument would seem to hold true for body-worn camera footage.
And though the issue of body-worn camera footage is relatively new for the IPCO, its decision in Order PO-3671, Ministry of Community Safety and Correctional Services dated November 30, 2016 makes it clear that there is no blanket exclusion on releasing such recordings when requested by members of the public who appear within. (Although to be fair, the specific issue of whether such recordings are “labour and employment” information does not appear to have been raised, as the conduct of the officers was not in issue.)
Considering the above, the argument that all body-worn camera footage automatically falls under the “labour and employment” exclusion is not likely to prevail in an appeal before IPCO. Body-worn camera footage is unlike “core” employment records such as performance reviews, employee improvement plans, discipline records, hiring process notes, and personnel files; it bears much greater similarity to officers’ notes, which are routinely disclosed in response to freedom of information requests.
It would therefore appear that if body-worn camera footage is to fall under the labour and employment exclusion, it could only be on a case-by-case basis, as further described below.
Can Recordings be Excluded Based on Officer Conduct?
Another argument a police service might make is that though not all body-worn camera footage is subject to the “labour and employment” exclusion, some recordings or portions thereof should be excluded on the basis that the officer conduct they record may lead their use in “anticipated proceedings … relating to … the employment of a person”. This proposal would at least not conflict with Order PO-3671 described above, because in that case, the conduct of the officers was not in issue.
That said, this argument would put police services in the odd position of having to pre-judge whether a recording might be used in an employment proceeding down the line. In some cases, footage may be sought for a completely unrelated purpose, but a police service might still refuse to release it on the basis that it might be used in anticipated employment proceedings. In such a case, by not releasing the footage as requested, would the police service be impugning the service record of their officer, prior to any actual or anticipated proceeding?
In cases where footage is being requested in the context of a complaint against an officer, perhaps the analysis would be more straightforward, but we then wind up in a strange situation where members of the public could only access body-worn camera footage in situations where they are not alleging any misconduct on the part of the police. Under this rule, it would not seem out of line for a police service to ask a requestor to advise whether they intend to use the recordings they are requesting in support of a complaint or allegations against officers present in the recording. This would seem to violate the principle that requestors are allowed to use the records they request for any purpose; it is not in the purview of government institutions to restrict how requestors use public information or their own personal information.
Further, the idea that body-worn camera footage should not be disclosed when doing so may reveal officer misconduct seems to go against the fundamental aims of freedom of information: to promote transparency, foster trust in government, hold government accountable and unmask corruption and misconduct. It’s one thing to exclude access to performance reviews, employee agreements and contract negotiations from disclosure, but it’s another thing entirely to take the position that no records will be released if they make an employee look bad or that capture behaviour which could potentially be relevant to a future employment-related proceeding. Such a broad rule would exclude many of the records that freedom of information laws were created to reveal.
Can The Nature of Body-Worn Camera Footage Change After It Is Recorded?
A final argument could be that we do not have to leave it up to the institution to decide whether the requested records might be used in an anticipated proceeding: rather, once an employment-related proceeding has started or is anticipated to occur, only then would any records likely to be used in such proceeding come under the labour and employment exclusion.
This hypothetical rule has some advantages over the previous two proposals: first, it would not exclude nearly as many records, and second, it would not leave as much to the discretion of the institution. So long as no proceeding is underway or anticipated, body-worn camera footage would not fall under the exclusion.
The biggest problem with attempting to exclude records on this basis is that records that would begin their life as public information would suddenly “go private” and become exempt once an employment proceeding was anticipated. Recordings that might have previously been released to a requestor could become excluded from disclosure under further FOI requests. Yet the requestors who had already received the footage would presumably have no obligation to keep it to themselves.
The idea that public records could “go private” as soon as they become relevant to an employment proceeding seems to defy our intuitions about how transparency works. Once a record is made public, it generally remains so forever, other than in exceptional circumstances, such as in accordance with a court order, or when it is determined that the record was released in error. And it would not seem consistent with how other public records are treated. An employment proceeding may involve hundreds of public records. In a policing context, these records could include photographs of the street on which an incident occurred, or a business card containing the name and title of an officer involved in an incident. Such public records do not suddenly become excluded from Ontario’s Freedom of Information legislation merely upon their use in an employment proceeding.
Conclusions and Final Thoughts
Today’s article shows that it will be an uphill battle for police services to have body-worn camera footage excluded as “labour and employment” information. The content and nature of body-worn camera footage would seem to resemble officer’s notes too closely for a blanket exclusion to apply, yet attempting to apply the exclusion on a case-by-case basis seems unworkable as well. Of course, other exemptions and exclusions may be applicable to body-worn camera footage, at least on a case-by-case basis (perhaps most importantly the personal information exemptions present in both the Freedom of Information and Protection of Privacy Act and the Municipal Freedom of Information and Protection of Privacy Act).
That said, I am sympathetic to police services who are perhaps struggling to apply Ontario’s current FOI legislation to body-worn camera footage, a type of record that is in many ways unlike anything that has come before. At the time it was enacted, Ontario’s FOI legislation certainly did not contemplate that thousands of hours of video footage would be produced by police services on a daily basis, or that such footage would generally be riddled with personal information and other exempt material. Further, Ontario’s FOI legislation fails to acknowledge the significant effort that must be expended by police services in reviewing and redacting body-worn camera footage prior to its release. The fact that preparation fees cannot be charged for personal information requests is particularly problematic in the context of body-worn camera footage, where the preparation time required to sever information from a video can be far longer than the length of the video itself. And finally, the release of video footage of police activities clearly has high stakes in our modern online society in ways incomparable to the release of officers’ notes or other police records.
If reform of our FOI legislation was ever needed to deal with a new type of record, body-worn camera footage would certainly seem to be a top candidate.
Resources
Office of the Privacy Commissioner of Canada, Guidance for the use of body-worn cameras by law enforcement authorities (February 2015)
Toronto Police Service, Body-Worn Cameras: An investment in transparent and accountable policing services
Peel Police, Body-Worn Cameras – FAQs
FOI Assist Knowledge Base, When is labour and employment information exempt from disclosure?
FOI Assist Knowledge Base 
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