Commissar information et a rotection dea vie pringe de Ontario Information and Piacy Commissioner of Ontario March 24, 2015 PERSONAL & CONFIDENTIAL Mr. Udhbirprasaud Joe Bhikram 1500 Keele Street, Unit 302 Toronto, ON M6N SA9 Dear Mr, Bhikram: RE: Appeal MA12-170// Institution File Number: 12-0592 Dismissal of Appeal This letter sets out my final decision in the above-noted appeal, which as you know was re- opened in June 2014 to address new developments raising serious concerns about the efforts that were or were not undertaken by the Toronto Police Services Board (the police) to search for a video recording that was the subject of an access-to-information request you made to the police in 2012. As you know, despite police submissions made in 2012 stating that no video exists, and this office’s dismissal of your appeal on the ground there was no reasonable basis to conclude the sought-afier video exists, the police subsequently located the requested footage and released it to you in 2014, Upon being notified by the police of the video's discovery, this office re-opened this appeal to seek specitic information from the police as to what happened, how it happened, and what has been done or will be done to ensure that it does not happen again Given this background, the issues for my consideration in this re-opened appeal were: the reasonableness of the police’s search for the responsive video in 2012; the basis for the apparent misinformation provided by the police to this office during the original conduct of this appeal in 2012; the circumstances leading to the discovery of the video in 2014; and the steps that have been taken or that will be taken by the police to prevent such an incident from recurring. I also asked the police to address questions about the continuity of the video and other matters that were raised by you and by the individual representing you in this appeal. For the reasons that follow, I find the police’s failure to locate the responsive video in 2012, and the misinformation it provided to you and to this office at that time about the existence of the video, were the result of an unreasonable search conducted by the police in 2012, However, given the subsequent discovery and release of the relevant footage to you, and on consideration of the evidence concerning this incident obtained in the course of this inquiry, I am satisfied there would be no useful purpose served by ordering further searches to remedy the initial Tibunal senices department Series eteunal emia Tata 418) 326-3339, Cannas’ Wal 198 aca AW 188 eb: rnin.unreasonable search. Moreover, based on the evidence, and particularly the report of an outside party retained to conduct an independent review of the video, I am satisfied there are no grounds for your allegation that the video has been tampered with in any way, including by any deletion of portions of the video. 1 therefore dismiss your appeal and close this appeal file. ‘The detailed reasons for my findings follow. I will begin by setting out the background leading (o the re-opening of this appeal. BACKGROUND In 2012, you made a request under the Municipal Freedom of Information and Protection of Privacy Act (the Act) to the police seeking copies of video recordings of your detentions at 52 Division in 2005 and 2009. In particular, you sought access to video recordings made in the booking area and in the cell area (which you described in your request as the “Bull Pen”) of 52 Division during your detention on January 28, 2009, On March 12, 2012, the police issued a decision granting full access to the video taken of you in the booking area of 52 Division on the requested date. The police also advised that the retention period for recordings taken of the cell area is four months, and “therefore access to a video record for January 28, 2009 would no longer be available,” ‘Through a representative, you appealed the police’s decision to the Office of the Information and Privacy Commissioner (this office, or the IPC), and appeal file MA12-170 was opened. Among other things, your representative raised concerns about the police’s failure to indicate whether a reasonable search for the requested video had been undertaken, or to confirm whether or not the video still existed. On May 29, 2012, an analyst with this office wrote to your representative setting out his preliminary view that the appeal should be dismissed, for reasons including the absence of a reasonable basis to conclude the requested video existed, In his letter, the analyst invited written submissions from your representative for the analyst's consideration before making a final decision on whether to dismiss the appeal. On July 31, 2012, after receiving and considering written submissions from you and information received from the police, the analyst issued a decision to maintain his preliminary view to dismiss the appeal on the ground there was no reasonable basis to conclude the requested video existed. In that letter, the analyst outlined the information obtained from the police about video recording in the cell area: In my discussion with the police about your appeal, I was provided with formation on how the video recording of the cell area occurs. I was informed that video of the cell area is recorded to a hard drive that is on a continuous loop system. It was explained to me that the recording of this area is triggered by motion and when the hard drive's storage capacity is reached, the drive begins to record over the video recording that was previously captured and stored. Depending on the amount of activity taking place in the cell area at any giventime, and because recording is triggered by motion, the hard drive’s capacity for recording video in this area is generally reached and then recorded over within a 4 month period. Among other factors, the analyst noted that the police had received your access request more than 30 months after the indicated retention period for the type of record sought, in finding there was not a reasonable basis to conclude that the requested video existed, ‘On August 20, 2012, you and your representative wrote to the analyst in response to the decision to dismiss the appeal. These submissions were treated by this office as a request for reconsideration of the analyst’s July 31, 2012 decision, Among the grounds cited for secking reconsideration, your representative suggested that the information provided by the police did not directly confirm that the video did not exist. In light of these concems, the IPC analyst sought and received additional evidence from the police in the form of affidavits swom by an analyst in its Access and Privacy Section (the police analyst) and by its Freedom of Information Coordinator (the police FOIC). The affidavits outlined the roles of the police analyst and the police FOIC, the steps that were taken to process your request from the time it was received by the police, and the information obtained by the police analyst from the police’s Video Services Unit concerning retention of cell footage at police divisions generally and at 52 Division in particular, These affidavits affirmed that, based on the information received and to the best of police analyst's knowledge, the requested video did not exist. On October 24, 2012, the IPC analyst wrote to a second representative retained by you (your lawyer), enclosing copies of the two police affidavits and the request for reconsideration submitted by your first representative. The IPC analyst invited your lawyer to provide him with any additional written submissions, including any further arguments or evidence arising from the affidavits, to inform his decision on whether to accept or to dismiss the request for reconsideration. On January 7, 2013, after considering your representative’s request for reconsideration and additional submissions made by your lawyer, the IPC analyst upheld his previous finding that there was no reasonable basis to conclude that the requested video exists. Subsequent Developments By letter dated May 29, 2014, the police informed the IPC that it had “recently become aware of misinformation inadvertently provided” to this office in the course of this appeal. In this letter, the police notified the IPC of the recent discovery of the requested video as a result of inquiries by its Legal Services Unit. The police provided the following explanation for having misinformed the IPC about the existence of the video during the course of the appeal: Until 2009, videos of cell areas were not retained for longer than approximately 4 to 6 months as the video equipment recorded over ald footage once it had reachedcapacity. In 2009, our Video Services Unit purchased hard drives with more capacity and these are now stored centrally, Therefore, generally speaking, the old retention periods no longer apply to cell videos ereated after December 2008. Unfortunately, staff at our Access and Privacy Section were not aware of this when they requested the footage sought by Mr. Bhikram in 2012. They accepted the advice that the video no longer existed. The date of the video was January 28, 2009 and it is possible that the advice was based on a mistaken belief that the new drives were not functioning at that time. In any event, you dismissed Mr. Bhikram’s appeal based on information provided to you by our Access and Privacy Section that the record did not exist. In this letter the police also advised our office that you had launched a civil suit against the police, and that it would be providing the video to you through this process. On June 9, 2014, I wrote to the police to express my concerns about this disturbing development, and to inform both you and the police that this appeal file has been re-opened. I later notified the parties that this file has been streamed directly to the inquiry stage of the appeal process, and that Tam the adjudicator in this appeal On June 11, 2014, the police wrote to me to confirm that you had been given a copy of the video. It also reiterated that the video was discovered in the course of making disclosure in a current legal proceeding. On June 16, 2014, the police provided this office with copies of the video released to you. Conduct of Inquiry I began my inquiry into this matter by seeking the representations of the police on the issues set out in a Notice of Inquiry, a copy of which was shared with you. At your request, I agreed to also send a complete copy of appeal materials to your representative in this appeal. After receiving the police’s representations in response to the Notice of Inquiry, I sought, and received, additional representations from the police to clarify some information contained in its initial set of representations. I provided you and your representative with complete copies of both sets of police representations, and invited your submissions in response to Notices of Inquiry sent to you both. After reviewing the police’s submissions, your representative requested specific information about the “precise make and model” of the digital video recorders (DVRs) and the cameras used to produce the videos taken in the cell (“bull pen”) and the booking areas. The police provided this information to the IPC and it was relayed to you by IPC staff. 1 then received representations from your representative in response to the Notice of Inquiry. also received a large number of unsolicited submissions from you, mainly in the form of email communications. As staff from this office advised you on several occasions, due 10 thefrequency, volume and nature of these communications, most of these materials were filed without response; however, I have reviewed them all in arriving at my findings in this appeal You also hand-delivered to this office a package containing four DVDs and various documents. ‘The majority of these documents are duplicates of materials you provided to the IPC during the original processing of this appeal, and are referred to in the IPC analyst’s July 31, 2012 decision letter. I do not find it necessary to refer to these materials again. I have, however, considered the four DVDs you provided to this office. I elaborate on this below. After reviewing the representations received from all the parties, I decided to engage an outside party to conduct an independent review of the video at issue in this appeal. With your consent, I engaged Chuck Rothman, Director of E-Discovery Services at Wortzmans, a law firm with expertise in technology issues, to conduct this review. In obtaining your consent, I explained that [ would be providing Mr. Rothman with a copy of the video at issue in this appeal for the purposes of his independent review and report to the IPC. I explained that T would also be asking Mr. Rothman to review the four videos you hand-delivered to the IPC during the course of the present inquiry, I advised you and your representative that Mr. Rothman would be engaged to review the videos only, and not the matters around reasonable search that are at issue in this appeal. I also advised you that given Mr. Rothman’s role as an independent reviewer in this appeal, neither you nor the police should be in contact with him during the course of his engagement in this appeal. I next wrote to the police to advise that the IPC had retained Mr. Rothman to conduct an independent review of the video at issue in the appeal, as well as of certain additional videos supplied by you. In this letter I also relayed to the police Mr. Rothman’s questions seeking certain background information about the creation of the video to assist in his review. Finally, I advised both you and the police that neither party is entitled to review Mr. Rothman’s findings before I make my decision in this appeal. The police provided responses to Mr. Rothman’s questions about the video recording system use at the time the video at issue was made. Mr. Rothman next asked the police for copies of the original video recording files and any available log files produced by the video recorder system. In response, the police provided three additional DVDs and copies of video recorder logs, which this office provided to Mr. Rothman, After consideration of all the evidence, Mr. Rothman provided me with his report on his review of the video recordings supplied by the IPC, including his findings and conclusions regarding the allegations of tampering. In his report, Mr. Rothman states that he is unable to substantiate your allegations regarding tampering, including your allegations that portions of the video at issue in this appeal have been deleted. I have reviewed all the evidence gathered in the course of this re-opened appeal, as well as the materials before this office during the initial processing of the appeal. For the reasons that follow, I dismiss this appealRECORD ‘The video footage at issue in this appeal is contained on a DVD produced by the police. ‘The police released a copy of this DVD to you in the course of a civil proceeding. The police also provided a copy of the DVD to this office for the purposes of this appeal. ‘The DVD contains cell footage taken of you during your detention at 52 Division on January 28, 2009. The footage was taken from two in-cell cameras, and consists of one recording labelled “Bullpen | ~ D52-2” (1 hour, 23 minutes and 1 second in length), and a second recording labelled “Bullpen 2 — D52-2” (I hour, 14 minutes and 12 seconds in length). I will refer to the DVD supplied by the police containing both video recordings, which is the record at issue in this appeal, as the “video record” in this letter. I will refer to the two recordings contained in the video record at the “relevant footage. In addition, on August 26, 2014, you hand-delivered to the IPC a package containing four DVDs that you asked also be considered in this appeal. I will refer to these DVDs as the “appellant- supplied DVDs” in this letter. The four appellant-supplied DVDs were also provided to the outside party for an independent review of its contents, deseribe the appellant-supplied DVDs in more detail below, DISCUSSION The issues in this re-opened appeal arise from concerns regarding the reasonableness of the police's search for the relevant footage in 2012, the circumstances behind the discovery of the relevant footage in 2014, and the actions taken by the police to address these matters. 1 also added as issues in this appeal the concems raised by you and your representative about continuity in the video record. In particular, you alleged that portions of the video record had been deleted, or the video record otherwise tampered with. To address these issues, I asked all the parties to provide representations on the following topics: the initial search efforts undertaken by the police to respond to your 2012 request; the basis for the police’s 2012 decision that the relevant footage does not exist; the operation of 52 Division’s in-cell video recording system, including the system’s motion-sensitive recording function; information regarding any technical changes to the video recording system between the date the relevant footage was created and the date of discovery of the relevant footage; information concerning the discovery of the relevant footage in 2014; details of police policies and procedures concerning audio and/or video recording of individuals in police cells, and the retention of such recordings; and responses to certain questions posed by you and your representative about continuity in the video record, including about apparent inconsistencies in time stamp information and gaps in the video record, I received representations on the issues from the police and from your representative, and a number of additional submissions from you. The outside party provided me with a report of his findings following his independent review of the video record and the four appellant-supplied DVDs, and his conclusions in respect to your allegations of tampering in the video record. I have considered these materials, the video record and the evidence gathered during the initialprocessing of this appeal in arriving at my conclusions. I summ below. the parties’ representations Parties’ Representations Police submissions As requested, the police provided its representations in the form of an affidavit, sworn by a Deputy Chief. Initial Search Efforts. Operation of Video System, Subsequent Discovery of Video On the 2012 search, the police refer to the affidavits sworn by the police FOIC and the police analyst in 2012, which were provided to this office during the initial processing of this appeal. These affidavits detailed the steps undertaken by the police to locate the relevant footage. The police affirm the information provided in the 2012 affidavits, and provide additional details about the inquiries made by the police analyst that formed the basis for her conclusion, in 2012, that the relevant footage does not exist. The police explain that the failure to locate the relevant footage in 2012 was due to several errors on the part of police staff. Among these was the failure of the police analyst to submit her request for a search of the police’s Video Services Unit in writing; as a result, there is no record of the steps taken by that unit ¢o search for the relevant footage in 2012. The police advise that the protocol in place at that time (and currently) requires that any request made to the Video Services Unit be made in writing, and the steps taken to conduct a search be documented. Thus police staf?'s failure to make a written request and to produce a written record of the search was a breach of police protocol The police explain that the cell video system in place in police divisions, including 52 Division, is called the Detention Area Monitoring System (DAMS), and is designed to monitor and record the condition of detainees while they are in custody. Images are recorded on hard drives until their capacity is exhausted. At that point, older images are overwritten with new images, The police explain that the time span before overwriting varies depending on the amount of activity at a given division: “The busier the division, the shorter is the time span.” In addition, all hard drives in 52 Division are replaced at their replacement lifecycle dates (recommended after 30,000 hours) as part of an ongoing preventative maintenance program to ensure the reliability of the recording systems. ‘The police report that at $2 Division there are two DVRs connected to multiple cameras. The relevant footage was captured by a camera connected to the second of the two DVRs, which in 2009 had five hard drives that recorded sequentially. ‘The police report that the relevant footage ‘was captured in the fifth drive. The police state that “[hJad that footage been recorded on an earlier segment of the drive, or had the drives been pulled later, the video would likely have been overwritten.” Instead, the police report, the hard drive containing the relevant footage was pulled as part of the above-mentioned ongoing preventative maintenance program, and delivered to the Video Services Unit and entered into the video management system on March 1, 2011. Asa result, the relevant footage was not overwritten, Therefore, at the time of the 2012 search, the hard drive containing the relevant footage was stored at the Video Services Unit, and a written request made to the Video Services Unit for the relevant footage at that time (and in fact, made any time after March 1, 2011) would have resulted in confirmation of its existence, ‘The police also explain that between 2004, when the first DVRs were installed in Toronto police divisions, and 2012, several advances in technology have occurred, including an increase in the capacity in individual hard drives. By 2011, all DVRs and hard drives were replaced with a system which has approximately ten times the storage capacity, and the DAMS is now capable of storing up to three years of images prior to being overwritten, eliminating the likelihood of video footage being overwritten in six months.’ The preventative maintenance program of removal and storage also reduces the likelihood of overwriting. The police state, however, that the increase in capacity of the hard drives is unrelated to the police’s failure to locate the relevant footage in 2012, when the police analyst conducted her search. The police note that “at all times, the DAMS functioned reliably and [...] no video footage was lost or inaccessible”: the relevant footage “was always available.” ‘Therefore, the police state, had police staff followed the existing protocol (namely, by the police analyst submitting a written request to the Video Services Unit, and by the Video Services Unit conducting a proper search) in 2012, the relevant footage would have been discovered at that time, The police acknowledge that “[t]he failure to locate the video was purely a matter of human error.” ‘The subsequent discovery of the relevant footage in 2014 was the result of requests made by police legal staff to the Video Services Unit in 2014. In response to your civil suit filed against the police, legal staff sent a written request for cell and booking hall videos taken of you on the relevant dates, The police report that in response to this written request, staff of the Video Services Unit conducted the search, recovered the relevant footage from a hard drive in the archive library, and produced a copy of the video record for disclosure to you. Prevention of Recurren In the Notice of Inquiry sent to the police, I asked it to outline steps taken to prevent the recurrence of a similar error, and for details of how technical and other developments that may be relevant to access-to-information appeals are communicated to staff in its Access and Privacy Section, The police report that it is amending the policy in its Video Services Unit to ensure that any changes in process regarding availability of video images are communicated to stakeholders, and specifically to the Access and Privacy Section. It also reports having directed changes to the policy in its Access and Privacy Section “to ensure that details of verification are recorded [in] accordance with the approved practice.” The police report that forms will be standardized across the police service to ensure the proper documentation, in writing, of requests and searches. nally, the police reiterate that the DAMS is reliable and properly maintained, and that this incident “is no cause for concern” about the recording systems used by the police, given the * ‘The police note that no DVR recording configuration changes occurred with this or prior updates, and that the recording process remains the same.relevant footage was always accessible and could have been located had the request and scarch been properly documented, Video Continuity and Other Issues In response to your question about why the relevant footage was recovered without sound, the police explain that while the booking hall video contains audio, the cell recording system is not set to record audio, based on privacy considerations, In response to your concerns about inconsistencies in time stamp information, the police assert that the time stamp information is consistent. In response to the questions about gaps in the video record, the police report that the DAMS is an automated system that records activity within holding cells using motion detection technology, specifically a proprietary Panasonic DVR that detects motion in the video from connected cameras and records according to set specifications ‘As I found its representations on these matters to be insufficiently detailed, I asked the police to clarify these statements. In additional submissions, the police explain that the apparent inconsistences in time stamp information appearing at the top and bottom of the screen in the video record are due to problems with the resolution of the date and time images, and particularly the blurring of the ‘zeros’ and “eights” in the images — so that, for example, the January 28/09 date appears as January 20/09 due to blurring. The police explain that the date and times appearing at the top of the scteen are from the CCTV images generated at the time of recording and burned onto the image, whereas the date and times appearing at the bottom of the screen (in a black bar) are generated from the DVR data at the time of playback to produce the court copy of the video. The police state that these two sets of time stamp information do match at all times; however, as these are a copy of a video playback, some resolution in the text and numbers is lost on the copy. On the question of gaps in the video record, the police explain that the motion detection system is set for maximum sensitivity, based upon a change in a single or multiple pixel area of the overall video image, such that recording is triggered by a change in light or shadow even if a detainee does not move. The police also advise that the system is set to record for 30 seconds afier cessation of movement, so that the video record captures 30 seconds without movement priot to cach gap or stoppage, then starts again on any detected movement. The police note that the DAMS is an automated system that cannot be turned on or off by police officers at divisional facilities. Because the DAMS employs this motion detection technology, it normally produces a video recording containing gaps in the recording and jumps in the time stamp. ‘The police also address the gap of approximately six minutes and 15 seconds about which you raised particular concerns: the police state that, before and after this gap, your position in the cell does not appear to change and the recorder did not detect any movement. The police maintain that the video record corresponds to the deseribed settings of the motion detection technology. As I was satisfied that the two sets of police submissions clarified the police’s position on all the issues, I shared them with you in secking your representations, At the request of your representative, I also sought and received from the police, and conveyed to him, details of the make and model of the cameras and the DVRs that captured footage of you in the booking hall-10- and in the cell (“bullpen”) areas of 52 Division on the relevant date. I note that only the bullpen video footage is contained on the record at issue in this appeal. Appellant's submissions Both you and your representative made submissions to me. I will begin by summarizing the submissions made by your representative in response to the Notice of Inquiry and the two sets of police representations. submissions of your representativ In his representations made on your behalf, your representative reports that he consulted with the manufacturer of the camera equipment used to create the relevant footage, and analyzed the video record after those discussions, He does not take issue with the following statements made by the police in its representations: = The video recording system was capable and appears to have been set to cease recording after approximately 30 seconds without motion in the cell; - The two in-cell cameras, identified by manufacturer model, were incapable of recording sound; and ~The timing diserepaney in the video record is “(mostly) explainable by blurriness of the numbers.” However, your representative makes the following two allegations - A gap of six minutes, 15 seconds in the video footage taken from one camera (“CAM 1”) and of a gap of six minutes, 34 seconds in the video footage taken from the other camera (“CAM 2”) contained in the video record are “not consistent with a lack of motion for the entire duration”; and = “[S]ome other camera or system of recording clearly records sound from Mr. Bhikram inside the cell, as evidenced in the initial Crown disclosure video from 2009 beginning at 21:42.” The “camera with sound” is identified as being “labelled CAM 4 in the recording initially delivered to Mr. Bhikram in 2009.” In support of the first allegation, your representative provided six electronic image files with his representations. Some of these image files, capturing specified moments in time in the record, were marked up by your representative to illustrate what he describes as a “difference in Mr. Bhikram’s leg positioning across that gap” in the video record. He submits that the image files illustrate moments in the video record where “a slight, but discernible change in position of Mr. Bhikram’s legs during the critical six plus minute gap should have triggered the cameras into recording.” given the level of sensitivity the police attribute to the video recording system, He also refers to a “1/2 second discrepancy on between the time recorded in the upper left hand of the video screen of CAM 2 and the time in the black bar across the bottom of the screen for CAM 2.” He therefore submits there is critical video footage missing during the identified gap-1L- of approximately six minutes, and states that I ought to find the police are “continuing to refuse to disclose critical video.” In his submission, “the video footage appears to have been tampered with.” Your representative also refers to the history of this appeal, including that the police “falsely swore that video did not exist” in its 2012 affidavits. He notes that you made your initial access request to the police over five years ago. He also alludes to the charges that were the basis for your detention in 2009 and your dealings with your lawyer at that time. Finally, your representative proposes certain remedies in light of the history of this appeal and the other matters referred to in his representations. I address these proposed remedies in my findings, below. Summary of your submissions You made numerous submissions to the IPC on your own behalf, through email and by telephone, The IPC also received emails and a written submission from individuals other than your representative, indicating their support for you in this appeal. In addition, as noted, you hhand-delivered to this office a package of materiais, including four DVDs. Thave reviewed the written submissions you made personally and those made by individuals other than your representative. I note they either do not address the issues in this appeal, or else are subsumed in the representations made on your behalf by your representative. For these reasons, I do not find it necessary to further address these submissions in my decision. As noted, | provided the four DVDs contained in your August 26, 2014 package to the outside party for his review. Finally, I note you sent a number of emails to the outside party, Mr. Rothman, during the course of this inquiry. Mr. Rothman did not consider these submissions in conducting his independent review or in arriving at his findings following his review. Report of the independent reviewer As noted above, after considering the representations made by the police and your representative, I decided to engage Chuck Rothman of Wortzmans to conduct an independent review of the video record to determine whether there is any evidence of tampering in it. In addition, although neither you nor your representative made any particular submissions or allegations in respect of the four DVDs supplied by you, in the interests of thoroughness I also asked Mr. Rothman to include them in his review. Staff of this office hand-delivered all five DVDs to Mr. Rothman Following his review of the video record, the four appellant-supplied DVDs and the evidence provided by the police on the video recording system, creation of the video record and related matters, Mr. Rothman provided me with a report of his findings. In the result, Mr. Rothman states that based on his analysis of the recordings and evaluation of the way the recording system functions, he was “unable to find any evidence that the video-12- recordings had been tampered with, in any way. Specifically, [Wortzmans] did not find any evidence that portions of the recordings were deleted.” Mr. Rothman begins his analysis of the video record and the four appellant-supplied DVDs by setting out the following chart describing all five recordings provided to him by the IPC. The video record is the first item listed in the chart; the next four items are the four appellant- supplied DVD: PESTietrn Erne TPSD00321901 Investigative copy Bullpen 1: 17:05:31 to 21:43:30 provided by TPS toIPC _| Bullpen 2: 18:50:00 to 21:42:15 Exhibit B of Affidavit of Bullpen 1: 17:05:31 to 21:43:30 Nicholas Rolfe Bullpen 2: 18:50:00 to 21:42:15 BP 2009 Bullpen 1: 17:05:31 to 21:43:30 i Bullpen 2: 18:50:00 to 21:42:15 TPSD00321695 Recording of holding cell Bullpen 1: 17:05:31 to 21:43:30 Bullpen 2: 18:50:00 to 21:42:15 TPSD00316003 Recording of booking Video 1: 18:43:08 to 18:50:02 Video 2: 21:42:11 to 21:50:45 Mr. Rothman states that all the DVDs contained recordings in “VOB” format,? and that an MDS hash (which is described as “a digital fingerprint of a file, used to confirm that two files are identical”) of each VOB video file on each DVD was generated. Based on reviewing the MDS hash values of each file, Mr. Rothman was able to confirm that the videos on the first four DVDs. listed in the chart “were exactly the same.” He reports that the videos on the fifth DVD (one of the appellant-supplied DVDs) “were from different cameras than the first four videos, and consequently had different MDS hash values.” Mr. Rothman obtained the operating manual for the Panasonic video player’ that the police had identified as the video recorder used at the time of creation of the relevant footage. The operating manual states that the system creates and stores video recordings in “.h3r” format, a proprietary format used only by Panasonic for its Digital Disk Recorder systems. Based on this information, Mr. Rothman determined that the video record and the appellant-supplied DVDs did not contain original video recordings, but rather video recordings in a converted form. Mr. Rothman consequently asked the police to provide the original video recording files in .h3r format, and requested that an MDS hash or SHA-1 hash of the files be created, to enable him to confirm that the files he received were identical to the files extracted from the system. He also requested any available log files produced by the video recorder system. ‘The police provided this office with three additional DVDs, paper copies of the video recorder’s logs, and an accompanying letter. This office hand-delivered these materials to Mr. Rothman. ® Mr. Rothman describes “VOB" format as follows: “VOB files are containers, typically used on DVD-Video media. They combine digital video, digital audio, and subtitles into a single file.” * Model WI-HD316, with firmware version 1.68.-13- Mr. Rothman reports that the three DVDs contained .h3r video files and a Panasonic computer program to view the recordings. He notes that he did not receive confirmation that the .h3r files were created according to the instructions he had provided to the police, and that he did not receive any MDS or SHA-I hash information for the files. He states that the accompanying letter from the police indicated that hash data was not available. Mr. Rothman reports that the log files did not cover the time period in question, and contained different information than what he had requested from the police. He states that the accompanying letter from the police indicated that all available log files had been provided. Mr. Rothman reports that the .h3r files provided by the police spanned the time period 17:00:00 to 21:30:00 for both bullpen cameras. Although five of the -h3r files were not viewable, he subsequently obtained clarification from the police that the non-viewable files were for time periods where there was no detected movement and thus no recording. The police also subsequently confirmed to Mr. Rothman that the .h3r files had been created in accordance with his instructions, and that it had misunderstand his original instructions regarding the hash information; however, the police did not believe it could produce the information due to the way the files are stored on the Panasonic recorder. Mr. Rothman notes that the police indicated it ‘would inquire further to confirm this last item, but that he did not receive any further information on this from the police. On his analysis of the .h3r files, Mr. Rothman found that the files produced by the police each span 30 minutes of time, beginning at 17:00:00 and ending at 21:30:00. He reports that the files containing the relevant time periods are: © Cam9\09,090128183000.3000_00_00.h3r © Cam9\09,090128190000.3000_00_00.h3r © Cam0\09,090128183000.3000_00_00.h3r * Cam‘0\09.090128190000.3000_00_00.h3r He states that by viewing the files using the supplied Panasonic viewer software, he confirmed that “Cam9" is bullpen camera 1, and “Cam10" is bullpen camera 2. He states: The video in file Cam9\09.080128183000.3000_00_00.h3r ended at time stamp 18:57:35 and the video in Cam9\09.090128190000.3000_00_00.h3r began at 19:03:50. The video in file Cam10\09.090128183000.3000_00_00.h3r ended at time stamp 18:57:35 and the video in Cam9\09.090128190000.3000_00_00.h3r began at 19:04:09. Mr. Rothman describes the methods he used to determine whether the video recording files could be tampered with: In order to determine if the video recording files could be manually edited at the byte level, two of the files, Cam9\09.090128183000.3000_00_00.h3r_and ‘Cam9\09.090128190000.3000_00_00.h3r, were examined and manipulated using a hex viewer program to view the raw bytes.-14- Using the hex viewer, it was determined that the beginning of each .h3r file started with the text "LISTO2de". This text was repeated a number of times in each file, An attempt was made to determine if there was a relationship between this string and the number of seconds or frames recorded. Given the quality of the video in the recordings examined, it appears that the system was set to record at 30 frames per second. On the assumption that the occurrence of the header string in the .h3r indicates some boundary, | surmised that the header string could occur every second of time or every set number of frames. If so, there should be a repeatable correlation of the number of header occurrences and the number of seconds or frames in each recording. To determine if this was so, the number of seconds of recording in each file was determined through visual observation, and compared to the number of occurrences of the header string No direct correlation was observed, but it does appear that the number of occurrences of the header string is related in some fashion to the length of the recording. As no other regular occurrence of any string was observed in either file, the “LISTO2de" string was the only boundary found. The length of each file, in bytes, was also compared to the number of seconds and number of frames, The number of bytes per second and number of bytes per frame were calculated to determine if each second or frame within the file was composed of the same number of bytes. No correlation between file size and duration of recording was found. Since the header string was the only repeatable element identified, attempts were made to edit one of the files by removing or deleting all data between two ‘occurrences of the "LISTO2dc" header. Each edited file was saved as a new file, and an attempt was made to open the file in the Panasonic viewer. The viewer reported that all three files were corrupt and could not be played. Mr. Rothman also provides the following background information: Digital video is made up [of] multiple frames, each frame composing a static picture. The Panasonic WJHD316 recorder can record using 30, 60 or 120 frames per second. When played back in real time, the video appears as a movie rather than individual pictures. Editing the raw file would require determining where frames begin and end, as removing the data at a point within a frame would likely corrupt the file and make it non-playable.-15- The format of the Panasonic .h3r file is not publicly available. A search on the Internet did not reveal any information about the structure of the data in this type of file. Given this, the only way the raw file could be edited is to reverse-engineer the file format. As described above, attempts were made to do so, without success. The Panasonic WJ-HD316 recorder, used by TPS to create the video recordings, does not have the ability to edit recordings. It can be used to delete all recordings prior to a given date, but there is no feature to delete portions of a recording, The recorder maintains various logs of activities, including when the recorder is switched off. The entries in these logs are stored in the system memory, and according to the user manual, only 100 entries are maintained — when more than 100 log entries are created, the old log entries are overwritten. A request was made for logs within the relevant time period, but TPS confirmed that the information within the relevant time period no longer exists. Based on all the foregoing, Mr. Rothman concludes there is no evidence of tampering in the video recordings, including in the video record at issue in this appeal. In particular, Mr. Rothman states that: Based on the examination of the .h3r files provided by TPS, Wortzmans concludes that there is no evidence the files were manually edited to remove portions of the recorded video. We also conclude, based on our examination of the file structure, that manually editing the files would require either detailed knowledge of the file structure provided by Panasonic (which is not publicly available), or an extremely high level of expertise in reverse-engineering video files. Such a person would likely have to spend many hours or days examining the files in order to gain sufficient knowledge to edit the data. An average IT technician would not have the knowledge or expertise to carry out this work. After reviewing Mr. Rothman’s report, I decided it was unnecessary to seek additional representations from the parties Analysis and Findings As noted above, Mr. Rothman was engaged by the IPC only to review the video record and the appellant-supplied DVDs in light of your allegations of tampering, Mr. Rothman’s review di not concern the matters around reasonable search that are also at issue in this appeal. For the reasons that follow, I find that: 1. The police did not conduct a reasonable search in response to your request in 2012; 2. The subsequent discovery of the relevant footage in 2014, and the disclosure of the video record to you outside the access-to-information process, has obviated the need for an order for further searches in this appeal; and 3. There is no evidence of tampering in the video record.S162 The police's 2012 search was unreasonable As identified in the Notices of Inquiry sent to the parties, the police’s failure to locate the relevant footage, and its denial of the existence of such footage, in 2012 raise serious questions about the reasonableness of the police’s 2012 search, and about the accuracy of the information provided to the IPC during the initial processing of this appeal. Where a requester claims that additional records exist beyond those identified by the institution, the issue to be decided is whether the institution has conducted a reasonable search for records as required by section 17 of the Act.‘ If an adjudicator is satisfied that the search carried out was reasonable in the circumstances, he or she will uphold the institution’s decision, If the adjudicator is not satisfied, he or she may order further searches. The Act docs not require the institution to prove with absolute certainty that further records do not exist. However, the institution must provide sufficient evidence to show that it has made a reasonable effort to identify and locate responsive records.’ A reasonable search is one in which an experienced employee knowledgeable in the subject matter of the request expends a reasonable effort to locate records which are reasonably related to the request.* A further search will be ordered if the institution does not provide sufficient evidence to demonstrate that it has made a reasonable effort to identify and locate all of the responsive records within its custody or control." During the initial processing of this appeal, the IPC analyst asked the police to provide evidence, by way of affidavit, about the retention period for the type of video recording you sought from the police, including an explanation of how cell video is recorded, stored and overwritten, The IPC analyst also asked the police to confirm, by way of affidavit, that no other copies of the relevant footage were made or retained by the police, and to advise as to the steps taken to search for the requested footage. As all the parties are aware, in 2012 the police provided two affidavits, one each from the police FOIC and the police analyst, affirming its decision thatthe requested footage did not exist. The IPC relied on the police’s evidence when dismissing your appeal in January 2013 on the ground you had not provided a reasonable basis to conclude the relevant footage exists. As the parties are also now aware, this dismissal was based on misinformation provided to this office by the police. In the course of my inquiry into this re-opened appeal, I asked the police to address this matter in its representations. lavit of the Deputy Chief, and the additional evidence le On my review of the July 2014 af provided by the police at my request, I am satisfied that the police have provided a credi explanation for its failure to locate the relevant footage in 2012. The police attribute this * Orders P-85, P-221 and PO-1954-1 5 Orders P-624 and PO-2559. © Orders M-909, PO-2469 and PO.2592 ” Order MO-2185,-17- to human error on the part of various police staff, including the police analyst’s erroneous inference that the relevant footage was unavailable and her failure to file a formal written request to its Video Services Unit. Although the protocol in place at the time of the 2012 search (and currently) for search requests made to the Video Services Unit requires that search requests and the steps undertaken to conduct searches be documented in writing, this protocol was not followed by the police staff that carried out the 2012 search. The police note that in response to a written request made in accordance with the protocol in 2014, police staff were able to locate the relevant footage. The police acknowledge the relevant footage was “always available” and ought to have been retrieved in response to your 2012 request. Although the police explain that its cell video recording system always funetioned reliably and had no impact on the police’s failure to locate the relevant footage in 2012, at my request it provided a detailed explanation of the operation of the video recording system and the changes to the system implemented between 2004 and 2012. While not relevant to my findings on the issue of reasonable search, this information was pertinent to the independent party’s review of the ideo recordings, and it was shared with him for that purpose. Based on the evidence before me, it is clear the police failed to conduct a reasonable search in 2012 in response to your access request. There is now no dispute that the relevant footage existed at the time of your access request and at the time of the police’s initial search in 2012. The police acknowledge that had a proper search, documented in accordance with its protocol, been conducted in 2012, the relevant footage would have been located at that time, as it was in 2014 when a request was made in accordance with its protocol and yielded the video record. I find that the police's failure to comply with its own protocol in conducting the search in 2012 was the basis for its failure to locate the relevant footage at that time, and that the 2012 search ‘was unreasonable. There is no basis for the sought-afier remedies Having found that the 2012 search was unreasonable, I will next consider whether I ought to make an order under the Acr to remedy the unreasonable search, Where an adjudicator finds an institution has failed to conduct a reasonable search in accordance with the requirements of section 17 of the Act, he or she may order the institution to conduct further searches. In the circumstances of this appeal, including, significantly, the subsequent discovery of the relevant footage and release of the video record to you through the civil discovery process, I find there is no purpose in ordering the police to conduct further searches to remedy the 2012 unreasonable search. In his submissions on your behalf, your representative proposes three other remedies in light of the history of this appeal. He asks that I: ~ Require the police to “disclose the full video, including the missing six plus minutes (and any other missing video)”;-18- - Require the police to disclose “the full audio, and any additional video recorded by CAM 4 or whatever other recording device allowed for sound to be present” in an identified portion of “the initial video released by the Crown”; and - Make a declaration that the police “made multiple false sworn statements to the IPC and Mr. Bhikram,” and fine the police, “under the authority granted to IPC, $5000 for each instance of an affidavit that the IPC determines to have been false.” 1 will address the first proposed remedy in my discussion of your allegations of tampering in the video record under the next heading, On the second item, I do not find any basis for making an order for disclosure of an audio recording, or for additional video related to what is described as “the initial video released by the Crown.” As deseribed at the outset of the present inquiry, the video record at issue in this appeal is the DVD containing footage taken of you in the bullpen area of 52 Division on January 28, 2009, which was released to you through a civil discovery process in 2014. Upon the re-opening of this appeal, the police also provided a copy of the video record to my office for the purposes of my inquiry. ‘The footage contained in the video record consists of video only, and no audio, The police have explained that the cell recording system is not set to record audio for reasons of privacy. 1 accept this explanation for the absence of audio in the video record; I note that in his submissions, your representative also accepts that the cameras inside the cell were incapable of recording sound. ‘Thus the absence of audio in the video record is not a live issue in this inquiry. ‘The video that your representative describes as the “initial video released by the Crown” is not at issue in this inquiry. As such, this office has not obtained or reviewed the contents of the described video. I recognize that one of the four appellant-supplied DVDs was contained in an envelope that you labelled “Police Video with Audio ~ by Crown ~ July 2009.” However, on Mr. Rothman’s review of this particular DVD, he found it contains footage that is identical to that contained in the video record ~ namely, two video recordings without audio, His review of all four appellant-supplied DVDs also shows that only one of the DVDs contains audio, and thi corresponds to footage taken in the booking area of 52 Division, This video recording with audio is not at issue in this appeal. For these reasons, I do not find it necessary to further consider your representative's request for a remedy in relation to audio or video recordings outside the scope of my inquiry. On his last proposed remedy, your representative appears to be referring to the offences and penalty provisions at sections 48(1)(e) and (2) of the Act. Section 48 reads, in its entirety: 48. (1) No person shall, (a) wilfully disclose personal information in contravention of this Act;-19- (b) wilfully maintain a personal information bank that contravenes this Act; (c) make a request under this Act for access to or correction of personal information under false pretences; (4) wilfully obstruct the Commissioner in the performance of his or her functions under this Act; (e) wilfully make a false statement to mislead or attempt to mislead the Commissioner in the performance of his or her functions under this Act; or (0) wilfully fail to comply with an order of the Commissioner. (2) Every person who contravenes subsection (1) is guilty of an offence and on conviction is liable to a fine not exceeding $5,000. (3) A prosecution shall not be commenced under clause (1) (4), (e) oF (f) without the consent of the Attomey General. The imposition of the penalty described at section 48(2) of the Act is not within the authority of this office. In addition, section 48(3) of the Aci imposes a condition on the commencement of any prosecution under section 48(1)(e) of the Act. I recognize that the submissions made by you and your representative and the requests for remedy reflect your dissatisfaction with the long history of this appeal, and your concerns about the police’s initial search efforts and the misinformation provided by the police during the initial processing of this appeal. I also understand from both parties that you are currently involved in legal proceedings against the police. However, the scope of my inquiry in this appeal is limited to the issues of reasonable search and your allegations of tampering in the video record. ‘The second and third remedies proposed by your representative are neither appropriate nor available to me in the circumstances of this appeal. I found above there is no purpose in ordering further searches by the police to remedy the unreasonable search conducted in 2012. I am also satisfied with the measures that the police have undertaken or will undertake in order to ensure that such an incident does not recur. ‘These include amendments to policies in the Video Services Unit and Access and Privacy Section, and the standardization of forms to ensure written documentation of requests and searches. As I noted in my correspondence to the parties at the outset of this inquiry, I re-opened this appeal following the 2014 discovery of the relevant footage as a result of my serious concerns about the police's initial search efforts in 2012, and the apparent misinformation it had provided to my office and to you about those efforts. Based on all the evidence, I am satisfied that the police have provided a eredible explanation for the misinformation provided to my office at that-20- time, and that the measures it has described will minimize the possibility of a similar recurrence. For all these reasons, I dismiss this aspect of your appeal, There is no evidence of tampering by the police In addition to the issues around reasonable search, | asked the police to address certain questions about the continuity of the video record and other matters raised by you and your representative, On my consideration all the evidence, and particularly the independent report of the outside party, I am satisfied there is no basis for your allegations of tampering. Mr. Rothman reviewed not only the video record but also the four appellant-supplied DVDs, and afer determining that three of the four appellant-supplied DVDs contain footage identical to that contained in the video record, proceeded to analyze the video record for evidence of tampering. His conclusions are based on his review of all the evidence, including the police's representations, the specific allegations made by your representative, and additional materials including the operating manual and video recorder logs, as well as his independent analysis of the video record itself. His report describes in detail his attempts to manipulate the video record in the manner alleged by your representative. Mr. Rothman concludes there is no evidence of tampering in the video record. I defer to Mr. Rothman’s conclusions on this matter, As there is no evidence before me to support your allegations of tampering or deletion in the video record, I dismiss this aspect of your appeal CONCLUSION After consideration of the evidence gathered both during the original appeal and in the course of this re-opened appeal, [ conclude that the police failed in 2012 to conduct a reasonable search for relevant footage in response to your request. However, in light of the subsequent discovery of the relevant footage and release of the video record to you, the police’s explanation for its unreasonable search and for discovery of the relevant footage in 2014, and its account of the steps it has taken and will take to prevent a recurrence of this type of incident, I find there is no basis for me to issue an order to remedy the unreasonable search. Moreover, based on the evidence, and particularly the report of the outside party, I am satisfied there is no evidence of tampering with or deletions in the video record. I therefore dismiss your appeal and close this appeal file. Sincerely, phe Brian Beamish Commissioner ce, Douglas Johnson Hatlem (via email) Deputy Chief Mike Federico, Operational Support Command, Toronto Police Services Board