MOUNT KISCO, NY – On Aug. 29, a summary from the law firm Olsson, Frank, Weeda was sent to the client base of Mount Kisco, NY-based Arrowsight that interprets last week’s Food Safety and Inspection Service directive on video monitoring. The summary, which follows, addresses under what circumstances FSIS inspectors can and cannot have access to RVA video and related data.

For some video monitoring, agency access can be easily determined:

• If the establishment expressly incorporates the video record in its HACCP, SSOP or a pre-requisite program – FSIS has access.
• If the establishment uses the video record in an appeal – FSIS has access.
• If the establishment uses Live Feed video monitoring and no record is created or the record is not maintained, FSIS could view live, but would have no basis to request the temporary record because the IPP cannot take action on a live feed.

In all other cases, access to the video record depends on how the establishment uses the record, the clarification states.

Regarding access to video records/RVAs not designated as HACCP/SSOP/pre-requisite – as an initial matter, videos require significant storage space in electronic form. As a result, it’s anticipated most establishments will not maintain the video for any appreciable period of time or will limit retention to discrete segments, with or without some accompanying “paper record” maintained in electronic form. These records may be generated by the establishment or be created by a third-party auditor (the remote video audit or RVA previously mentioned).

Establishment video-auditing programs and RVA programs include video cameras installed at certain locations throughout the facility, including livestock pens and the slaughter lines. The establishment specifies the criteria its employees or the remote auditors will use to assess performance. The establishment or auditor periodically reviews the video feeds. If the establishment performance falls below a set level on any given audit, certain procedures are followed.

For establishment viewing, the employee may note the performance and contact other establishment employees to investigate. In the case of a third-party auditor, it could send an e-mail alert to the establishment summarizing what was observed. This e-mail will contain a link to the video for the establishment to view. On a daily and/or weekly basis, the auditor may also send a summary report of the video observations.

The question now becomes whether the videos, establishment notes, the e-mail alert and/or the summary reports would be accessible to IPP under the agency’s records authority. Under the Guidelines and the Directive, the question cannot be answered in the abstract because accessibility depends on how the establishment uses the information.

FSIS records access authority is found in various regulations and policies. For example, HACCP records access is covered by 9 CFR § 417.5. Under this regulation, FSIS has access to decision-making documents, and all HACCP monitoring and verification is to be signed by establishment employees. Likewise, for SSOPs, responsible establishment officials are to “authenticate” the records.

Finally, under Directive 5,000.2, FSIS has access to microbial testing results, though the access would not extend to testing conducted for a customer if product acceptance is not conditional upon the results (i.e., such results would not be “actionable.”). For such testing records, if customer acceptance is not conditioned, the test results would not impact on the establishment’s hazard analysis.

Based on this information and informal conversations with FSIS officials, for a record to be accessible, it must be the primary basis for an action (decisional/actionable), the law firm stated. Otherwise, the record would not be accessible.

Applying this standard to establishment auditing and RVA programs, the question is whether the establishment receiving the information accepts it and uses the document as the sole basis for a decision. For example, an establishment receives an e-mail alert that a slaughter-line employee may not be following acceptable practices. On the basis of the alert and the video link, the establishment determines the line employee is not following the procedure and directly takes action to improve performance.

In this case, the alert and the corrective actions or HACCP reassessment would be accessible; the alert was adopted by the establishment and formed the basis of the subsequent action. However, the law firm said it understands this is not the general use of the audits/alerts.

Compare and contrast those circumstances when the establishment does not take the alert at face value and chooses instead to investigate the situation in person at the work area identified in the alert. In such a case, the establishment’s independent investigation will form the basis of any decision, not the alert. Under this example, the alert would not be accessible.

If the establishment’s investigation determines there was a HACCP or SSOP deviation and corrective action was taken or the HACCP plan reassessed, the establishment’s investigation may need to be documented, but without the need to include the alert or the related video, the law firm said. “We understand this is the way the alerts are generally used, with the establishments investigating the information and taking action, when appropriate, based on their own findings from the on-site investigation,” the clarification states.

As part of the investigation, the establishment could show the video to an employee or group of employees or use the video for training purposes, the clarification adds. Such uses would not transform the video record to a decisional document.

Regarding humane handling and food defense RVA programs, the same analysis applies. If the establishment takes action solely on the alert, the alert would be accessible. However, if the establishment undertakes its own investigation/appraisal, the alert and related video is not accessible; other records from the establishment's own investigation/appraisal may or may not be accessible as previously discussed.

Click here to read the entire legal memo.