Ignore the OPC and Don’t Alter Video Surveillance, says Lead Claims Investigator

Investigators and claims professionals should ignore requests from the Office of the Privacy Commissioner of Canada to blur images of third parties in surveillance, said Brian King, president of King Reed & Associates.

Speaking to delegates at the 43rd Annual CICMA/CIAA Ontario Chapter Joint Conference, held in Toronto from Feb. 3 to 4, 2010, King explained that the OPC guidelines were not law and should not be adhered to by any claims litigation parties.

King’s primary concern was with the OPC’s recommendation that investigators pixalate third-party images on surveillance video taken during claims investigations—a recommendation that would put the investigators on the other side of the law as they would be tampering with evidence, said King.

These concerns mirrored the arguments presented by Norman Groot, a fellow panelist at the CICMA conference and a commercial and insurance litigation lawyer and Certified Fraud Examiner, who wrote a column on the topic published in the September 2009 issue of Canadian Insurance Business Magazine.

Despite little industry consultation the OPC developed and released draft guidelines only days after the complaint was lodged in 2005.

King, who has intimate knowledge of the case, explained that the complaint was made after a routine investigation into a claimant’s case. According to King, the investigator had videotaped the subject of the surveillance coming out of a store accompanied by her sister and her sister’s daughter. Despite a settlement in the case in 2004, the sister—the third-party in the video surveillance—initiated the complaint with the privacy commissioner in 2005, stating infringement of privacy. 

King explained to the delegates that this sister was never identified, by name or other identification, and that the video surveillance was held to the strictest ethical and legal codes of confidentiality. (The video never left the possession of the insurer or the legal counsel.)

Yet, shortly after the complaint the OPC issued a new guideline calling for all investigators to blur the image of third parties on video surveillance.

As Groot initially explained in his article, there are a number of concerns with the new OPC guideline.

The first is that investigators will be on the wrong side of the law—it can easily be argued that the blurring of images on video surveillance is tampering with evidence.

Another major concern, explained King, is that masking third-party images comes with an extreme price tag.

For example, King’s firm recently pixilated a 36-minute videotape, where a couple of third-parties had to be blurred. Despite using the most up-to-date technology, King and his colleagues took 41 hours to mask all images of the third parties on the tape.

While King respects the desire of the OPC to protect consumer privacy he is concerned that the new guidelines—which are not law—will add undue legal and financial burden to anyone involved with claims cases.

“We responded by agreeing to all of the points the privacy commissioner said, with the exception of the last one which was video masking,” King told the delegates. “The reason we did is we wanted to challenge this in the federal court as being unconstitutional with respect to litigation and all the unfairness.”

While the concerns expressed by King at the conference (and Groot in his column) should be a concern to all involved in current and potential claims litigation, King is optimistic.

“[The privacy commission had approximately] 45 days in which to appeal our decision not to comply and take this to court—we never heard word one.”

Still, King would prefer to have a definitive decision from the courts. “We want the federal court to decide.”

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