No. 23  |  November 2016

Where’s the leak? - Managing public interest disclosures

Background

A complaint was received from a person who had made an anonymous public interest disclosure (PID) under the Public Interest Disclosure Act 2010 (PID Act) regarding an agency. The information in question had become public following the disclosure.

The person subsequently became aware that the agency was conducting an investigation to find out the source of the information. The person was concerned that the purpose of the investigation was for reprisal action to be taken against them.

The investigation

The Ombudsman decided to investigate:

• whether the agency, or any person representing the agency, had made inquiries with a view to determining the source of the information
• if so, whether the agency’s actions in making inquiries as to the source of the information were lawful and/or reasonable.

The agency had initiated an independent investigation. The agency maintained that the purpose of the investigation was not to determine the source of the information. However, having regard to the recordings of interviews conducted during the investigation and the investigation report, it was considered that the agency's investigator had made inquiries with a view to determining the source of the information.

In relation to the lawfulness and or/reasonableness of the agency’s actions, the Ombudsman’s investigation did not determine that any specific acts of reprisal had been made and the agency argued that an investigation as to the source of the information did not, of itself, constitute a reprisal.

The outcome

The agency advised that the investigation had been completed and no action would be taken against any person.

A number of recommendations were made to the agency including that it be made clear to staff that the making of a PID under the PID Act is an exception to the requirement to maintain confidentiality. Other recommendations included that the agency provide training to staff regarding:

• what constitutes a PID
• how to make a PID
• how a PID should be managed to ensure compliance with the PID Act and the agency’s policies and procedures relating to PIDs
• the protections offered under the PID Act in relation to reprisals.

The agency accepted all of the recommendations made.

As the matter was completed from the agency’s perspective and the agency had agreed to all recommendations made, the Ombudsman did not consider it necessary to further investigate the motives for, or circumstances surrounding, the investigation in question.

Making a difference

While an agency has an obligation to secure confidential information and ensure that it is not disclosed by staff publically, an agency must at all times be aware of the provisions of the PID Act and that a PID is an exception to the requirement to maintain confidentiality.

Where a disclosure is made anonymously, an agency may not know with certainty whether the disclosure is a PID or whether it is a breach of confidentiality. In this situation, a full assessment as to whether it may be a PID should be made against the criteria in the PID Act as, in many cases, the circumstances will indicate whether it is likely to be a PID. If a disclosure is most likely to be a PID, an agency should exercise extreme caution in the way it deals with the matter and should not take any actions that could be seen as being a reprisal.

It is clear that there are arguments for and against whether an investigation to find the source of a disclosure may, of itself, constitute a reprisal. It is noted, however, that anonymity is viewed by some as the best possible protection against reprisal and an investigation as to the source of a PID can remove the comfort that anonymity provides. A successful investigation may therefore result in a public interest discloser believing that they are then exposed to risk that they were not previously exposed to. The motives behind attempts to ‘uncover’ the discloser would need to be explored in considering the appropriateness of such action. How such actions are viewed would ultimately turn on the specific circumstances of the case in question.

More information regarding PIDs can be found on the Queensland Ombudsman’s website www.ombudsman.qld.gov.au.

All personal information you provide is handled in accordance with the Information Privacy Act 2009. More information on how this Office manages personal information can be found in the Office's Privacy Plan.