We recently had reason to again consider whether an FOI applicant could obtain edited video footage with pixelation applied to avoid the footage being exempt from disclosure.
Closed-Circuit Television (CCTV) footage is ubiquitous with living in the modern day. Government agencies are facing an increasing number of Freedom of Information (FOI) requests for access to video footage.
The Personal Affairs Exemption and Partial Access
A problem arises where parts of the footage requested contains information or material that would render the footage exempt. For example, the footage may reveal the identities of third parties, enlivening the personal affairs exemption in s 33 of the Victorian FOI Act.
In this situation, applicants might have sought partial access under section 25, proposing that the parts of the footage causing the document to be exempt be “edited out” or deleted. Applicants often suggest that exempt matter in video footage could be pixelated to remove the application of an exemption while granting access to the remainder of the footage.
Putting to one side whether pixelation can effectively remedy the footage from being exempt, the threshold issue is whether the technological process of pixelation satisfies the requirement for ‘deletion’ under s 25 of the FOI Act?
Is Pixelation a ‘Deletion’?
Section 25 of the FOI Act permits an agency to grant partial access to a document if it is “practicable for the agency… to grant access to a copy of the document with such deletions as to make the copy not an exempt document.” (emphasis added)
Standard dictionary definitions of “delete” focus on the removal or obliteration of written material. It’s not a word one would ordinarily use to describe the process of pixelating or editing video footage.
Consideration by VCAT
The issue of pixelation under s 25 was addressed in Rogers v Chief Commissioner of Police [2009] VCAT 2526 and again in Lonigro v Victoria Police [2013] VCAT 1003. In both cases, the Tribunal noted that the pixelation of video footage to obscure individuals is not a “deletion” as required by the s 25. In Lonigro the Tribunal drew a distinction between deletion and alteration, considering that pixelation was a form of alteration and was thus outside the scope of s 25.
This issue was also recognised by OVIC in its submissions to the Integrity and Oversight Committee’s Inquiry into the Operation of the FOI Act.
Despite the Tribunal’s decisions in Lonigro and Rogers, subsequent published VCAT and OVIC decisions considering the pixelation of video footage appear to have overlooked this threshold issue. Instead, they have focused almost exclusively on the practicability of pixelation under section 25(b) (e.g. whether the agency has the resources and technical capability to perform the task), without first considering whether pixelation is, in fact, an authorised form of “deletion”.
Navigating the Ambiguity
We believe the practice of editing video footage via pixelation (or other means) purportedly under s 25 the FOI Act remains unsettled.
If an agency receives a request for CCTV or other video material, it should be aware of this ambiguity between the legal authority and the common operational practice (considering practicability). It is important to remember that every case is different and needs careful consideration.
At FOI Solutions we provide expert advice on all aspects of FOI matters to government departments, agencies and councils. If you need assistance with navigating requests for video footage, please reach out to us info@foisolutions.com.au or call (03) 9601 4111.