Perth County council discusses pros, cons of recorded video of meetings

·10 min read

PERTH COUNTY – At the onset of the COVID-19 pandemic, most municipalities were quick to move to live streaming or recording council meetings, as well as posting the recordings online, to ensure continued access to public meetings.

On Dec. 16, Director of Legal and Corporate Services, Annette Diamond, presented a report to Perth County council weighing the benefits of transparency, accessibility, and accountability with the potential risks of losing control of the recordings of council meetings once posted online, as the videos could be downloaded and potentially manipulated.

Ensuring accountability and transparency is one of council’s roles under section 224 of the Municipal Act. The act requires that municipalities adopt and maintain policies to ensure accountability to the public for their actions and that their actions are transparent to the public.

Council approved a Corporate Records Management Policy on Nov. 18 coupled with its Retention Bylaw approved in 2019, the policies provide direction on the management of corporate records, including the video recordings of county meetings.

Council meetings art kept as archive copies indefinitely and are retained on YouTube for two years under the County’s Corporate Records Management Policy.

Once the video recording of council exists, it becomes a record subject to the municipality’s Record Retention Bylaw and the Municipal Freedom of Information and Protection of Privacy Act (MFIPPA).

With the posting of a video online, the video becomes accessible to anyone anywhere over the internet and it may be downloaded and manipulated. For instance, in an election, a candidate could compile and post any comments or embarrassing moments attributed to their opposition. Although a municipality owns the copyright on the video, the person manipulating the video may argue they are not violating the municipality’s copyright because of “fair use” since they are not doing so for profit. Fair use means someone can reuse copyright-protected material under certain circumstances without getting permission from the copyright owner.

Once downloaded or requested through MFIPPA, the municipality loses control of the recording, which poses a risk that a person’s words and images are captured in perpetuity.

Diamond, a recent hire for the county, used her first online participation with council as an example. When she introduced herself her cat repeatedly interrupted her.

“Unfortunately that recording now lives on in perpetuity and if anybody wanted to use that to embarrass me they certainly could – not one of my finer moments pushing a cat out of my way and having to present with a tail in my face,” she said.

Diamond said that although minutes of the meeting which are kept by staff members are the official record of a meeting, the videos which are uploaded to YouTube for two years and then archive later are copies of the meetings.

“It’s always the minutes which are the official records of council meetings,” she said. “There are differences between the minutes and the recordings. So, the recordings, provide a verbatim reproduction of the meeting, capturing who said what in its most accurate form. The minutes provide a summary. Statements are not attributable to specific councillors or positions are not listed and there is also an opportunity to review and later approve the minutes.”

Diamond acknowledged the videos could be used at a later date potentially against the corporation or a councillor.

“It could be that you said something or you took a position on a specific issue which may not have been favourable, or you may change your position at a later date, and someone could come back and say you said X, Y and Z at this particular meeting – now you are changing your mind. Why?” she asked.

She also pointed out that concerning those risks the videos serve to protect the corporation as they are an accurate representation of what was said at council.

“If a video is later manipulated or a quotation is taken out of context, the recording serves to protect the councillor and to protect council,” she said. “There is a concern that the longer the videos remain online, that there’s a higher risk that someone could download them or they could be manipulated or statements could be used against council or councillors, however, that risk arises as soon as the recording is created.”

According to Diamond, the public is entitled to the recording and can request it at any point in time.

“It’s a public record,” she said. “It’s subject to a MFIPPA request or could just be granted by right as a result of it being a public record. There may be a benefit to having people request the video, in that it may serve as advance notice that somebody is requesting it for a reason.”

Diamond told council that many municipalities do not have a policy specific to recording council meetings or how long they should be posted for.

“Some have taken the position that the recordings are for transitory records, so you will recall that these are records which are kept solely for convenience of reference,” she said. “They are short term and then they are destroyed. Some municipalities post recordings for 30 days. It appears there is one that posts for a year. It does seem that the majority post the videos indefinitely so you can continuously go back.”

The recommendations of the Association of Municipal Managers, Clerks and Treasurers of Ontario included a statement in one of its best practice guides that the recordings should be managed according to the existing records management procedures and bylaws, which is what Perth County is doing.

“From a legal perspective, there is no legal requirement to record the meetings or to post meetings,” said Diamond. “There is a legal requirement to be accountable and transparent pursuant to the requirements in the Municipal Act. I raise this issue with council because I want you to be aware that some risks come with recording council meetings, but they also need to be balanced with accountability, transparency and accessibility particularly at a time in which the public cannot attend meetings.”

Coun. Daryl Herlick said it was a very good report and it cleaned up a lot of information on the subject of council videos.

“Accessibility for the public right now is basically nil other than video,” he said. “It worries me, the idea that it wouldn’t be available… I have no problem with a cap if it helps for organizing, a couple of years – whatever we decide there. It’s just awesome right now that these videos are available… for the masses… and we all have that risk of making a mistake.

“Me, myself, it’s faith and prayer that I toe the line. I like to feel it keeps me in line… Archive them after, that would be a good idea.”

Coun. Todd Kasenberg agreed that making the videos available online and as archived videos is essential to the county’s transparency and accountability obligations.

“I understand that they can be manipulated,” he said. “I think frankly that’s a risk that many of us who enter public life engage with and as long as the corporation is maintaining what is considered the true record… I think that’s to our benefit because should there be some discrepancy or some individual with ill intention who manipulates the video then we have the true copy that we can roll out on demand.”

In terms of making the videos available on YouTube, Kasenberg said he would prefer to see a policy that all videos for the current term of council remain up and available.

“When the term is finished might be… the point where we take them down. Maybe there is a one year allowance for the last (year) at turnover or something like that but I think there is wisdom in at least making available in the public domain the current term’s videos of council,” he said.

That being said, Kasenberg also encouraged keeping an archived copy on an internal server “that is sort of a truer copy that has not been manipulated or infiltrated by hackers or any other who has nefarious intentions.”

Coun. Doug Eidt asked “when, and if we become normal again” would the county continue to put council videos online.

“For 175 years there has been no video record of it when everybody was in council,” he said.

“I’m not going to speak on behalf of staff but my guess is that you are still going to videotape and put them online for a period of time,” said Warden Jim Aitcheson.

Staff indicated that videos will continue to be made of council if and when in-person meetings resume.

Perth County was already live streaming meetings before the COVID-19 pandemic.

Deputy Warden Rhonda Ehgoetz agreed the meetings were important to have but felt two years is “way too long” to keep them online.

“One of the reasons is according to Robert’s Rules of Order Newly Revised, the minutes should contain only a record of what was done at the meeting, not what was said by the members,” she said. “To me, the tapes are the same as staff taking notes as we are doing our meeting but the motion, what we decide at the end is the official word but not all the public understands that. That it’s the motion that we’re going by not what the public is saying.”

Ehgoetz said she wasn’t even sure if staff keep their minutes or notes that they take or if they destroy them.

“If they destroy them then tapes should be the same thing because tapes are just an enactment of what went on,” she said.

Ehgoetz said that Perth East is in the process of making policy regarding how long it is going to keep its videos online.

“I think these recordings, you can keep them but not two years,” she said. “I think that’s, as I said, way too long. There is a huge liability risk keeping them around. I would like to see that we leave them up for six months and after six months they are archived, we keep them, if people want them they can access them through MFIPPA. They still get them but they are just not up on the computer all the time for access to everybody.”

Aitcheson noted he had heard several councillors mention wanting to change the current two years of the retention on YouTube in the bylaw.

“You can make your motion now, otherwise it is going to stay at two years,” he said.

“I would move that we only keep out YouTube videos on the computer for six months,” said Ehgoetz.

Eidt seconded the motion.

“Can I just clarify, Deputy Warden Ehgoetz, is your intent, you said on the computer, do you mean on YouTube, on the internet, is that your intention?” asked Kasenberg.

“Yes, they only stay on YouTube for six months and then they are still accessible after that through MFIPPA,” said Ehgoetz. “They are archived within the municipality.”

Herlick said that he liked the idea Kasenberg had put forward of keeping the videos up for the current term of council plus a one-year carryover.

“That’s unique,” he said. “I like it.”

No councillors put that forward as an official motion.

As for the motion to only keep videos online for six months before archiving them, Ehgoetz, Eidt and Coun. Matt Duncan voted in favour, the rest of council voted against it. It was defeated.

Colin Burrowes, Local Journalism Initiative Reporter, Listowel Banner

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