26.07.22

Access to “Off-the-Record” Information

Gavin Goffe
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Access to “Off-the-Record” Information

Minutes of Board Meetings of public bodies are “official documents” to which anyone can request access.  But with so many public bodies now having meetings by videoconference, are the unedited tape or video recordings of these meetings accessible under the Access to Information Act?

The audio recording of board meetings is nothing new.  Mini cassette recorders and Dictaphones have long assisted recording secretaries in the preparation of draft minutes, which are then reviewed and approved by the directors at a subsequent meeting.  What is new is that public bodies are having board meetings via Zoom, Google Meet and Microsoft Teams, all of which include the option to record the meeting, thereby creating a new document that is subject to access to information requests.

Under the Access to Information (ATI) Act, audio and video recordings are included in the definition of “documents”.  A document becomes an “official document” if it is in the possession, custody, or control of a public authority in connection with its functions. And “public authority” includes all government companies, ministries, executive agencies, and parish councils.  There can be no doubt, therefore, that these recordings are no different than hard-copy minutes in the eyes of the law.

There is, of course, a significant practical difference between written minutes and the digital recording of a meeting. Anyone who has attended a board meeting would know how frequently the phrases “that’s not for the minutes” or “that’s off the record” are used. If that videoconference is being recorded, then everything said could be accessible to the public on request, unless of course, the recording is paused.  On that note, while Zoom allows users to pause recordings, at the time of writing, Microsoft Teams does not. (You can stop and restart recording, creating 2 or more separate files).

Upon an ATI request being made for them, a public body is required to grant access to its minutes, unless there is an applicable exemption under the ATI Act. Where the minutes contain exempt material, the public authority may redact those portions before supplying a copy to the applicant.  Exempt material includes, but is not limited to, (i) trade secrets, (ii) information that could prejudice someone’s commercial interests, and (iii) recommendations, opinions, or advice for Cabinet deliberations.  There is no basis to redact unkind remarks, politically incorrect language or statements that might embarrass the board, the government or anyone else.  Similarly, there is no basis to refuse an application on the ground that the applicant is presently or could in the future become engaged in litigation with the public body.

Where draft minutes or a recording of a meeting is requested under the ATI Act, the public body has no option to supply the approved minutes instead.  In an English case from 2015, someone who was a claimant in litigation with a city council made a request under their Freedom of Information (FOI) Act for a copy of the draft minutes of a particular meeting.  Initially, the city council refused the request, saying that they had already supplied the confirmed minutes in the court proceedings.  The judge had ruled that the claimant was not entitled to receive the draft minutes under the court’s rules of disclosure. The requestor then sought an internal review of the refusal of his FOI request. The city council reconsidered its position and properly conceded that there was nothing in the FOI Act that exempted draft minutes.  The requestor got access to the draft minutes under the FOI Act because different tests applied under the FOI Act than under the Rules of Court.  The same is true of Jamaica’s ATI Act and our Rules of Court.

Video recordings of meetings present another unique challenge as it is an offence under the ATI Act for someone to alter, erase, destroy or conceal an official document with the intention of preventing its disclosure.  Thus, if off-the-record remarks are captured in a video or audio recording, and someone edits the recording to remove those remarks, they could be committing a criminal offence.  In that situation, they ought to retain the original, unaltered recording, in the same way that they retain draft minutes.  There is presently no law that stipulates the minimum period to preserve minutes of meetings. That said, deleting an official document that belongs to the Government of Jamaica is not something to be done lightly.

Obtaining off-the-record exchanges is a useful method of understanding the considerations and thought-processes of decision-makers in the public sector. Quite often, it is that which is not in writing that is most important to know.

Gavin Goffe is a partner at Myers, Fletcher and Gordon, and is the Head of the firm's Litigation Department. He may be contacted at gavin.goffe@mfg.com.jm or through the firm's website www.myersfletcher.com. This article is for general information purposes only and does not constitute legal advice.