Conducting internal investigations of disclosures received under the Public Servants Disclosure Protection Act

1. Initiation Stage (Receipt, screening, and preliminary analysis of disclosures of wrongdoing allegations)

1.1 Receiving and screening the disclosure: The Senior Officer must ensure that the allegation or set of allegations received from the discloser is clear enough to prepare terms of reference or a mandate for the investigators to conduct a preliminary analysis of the situation.

1.2 Preliminary Analysis: Once the allegation or set of allegations has been clearly articulated, the Senior Officer will

• Conduct or see that a preliminary assessment is conducted as to the validity and credibility of the information provided;
• Ascertain possible sources of information that would provide sufficient evidence to prove or disprove the allegations;
• Identify critical issues that may require immediate attention, such as on-going concerns, urgent safety or security matters, or potentially criminal acts; and
• Identify other subject matters that should be addressed by another process or authorities.

1.3 The outcomes of the initiation stage

• A decision is made to proceed or not to proceed to a formal investigation, with substantiated rationale for either decision.

1.4 Terms of Reference (Mandate) for the Investigation

• If the investigation is to proceed, terms of reference or mandate for the investigator(s) must be prepared. The terms of reference will include the scope of the investigation and the investigators’ responsibilities for informing witnesses of their rights and obligations.
• The terms of reference will also include a preliminary list of the witnesses that may be interviewed and the data or documentary evidence needed. Authorizations that may be required from various sources to conduct the investigation should be identified, as evidence may be under the control of other sections or there may be a need to inform senior personnel that access to documentation or personnel may be required.
• The terms of reference will also include an analysis of the resources needed to conduct the investigation, both human and financial. This analysis should take into account the skill sets needed, the linguistic competencies, the departmental resources to be consulted (legal, HR, finance, etc, if required) and the estimated budget for the investigation.

2. Execution Stage (Selecting, mandating and managing the investigation team)

2.1 Selecting the team: The Senior Officer may choose to use internal specialist resources, such as security, IT security, internal audit or financial analysts, only if there is no potential for conflict of interest in the matter to be investigated, and if confidentiality can be assured. It may be necessary to contract the investigation out to a reputable consulting firm with background in such areas as forensic accounting or security. The Senior Officer should ensure that the contract addresses such issues as security and clearances, custody of working papers, and standards to be used for the investigation.

2.2 Investigation Planning: Too often, insufficient attention is given to investigation planning. The investigation team should provide the Senior Officer with a more detailed investigation plan, which refines and elaborates on the preliminary estimates provided in the investigation mandate. The investigators should determine what evidence, if any, is missing and where it can be obtained, and which additional witnesses may be needed to corroborate the information and additional facts.

In addition, the investigators should include a list of potential witnesses and what questions they should be asked, and in which order the witnesses are to be interviewed. Budgeting sufficient time for interviews and document review is key. The investigation plan should include regular status reports from the investigators to the Senior Officer, and a provision for having any changes to scope, terms of reference or budget approved by the Senior Officer.

2.3 On-site investigation: Notes should faithfully reflect the testimony of those interviewed, and signed and dated by the interviewee. Interviewees may not keep a copy of their interview notes, as the information created in the process belongs to the investigation. Should the person being interviewed ask to record the interview, they should be informed that in so doing they are creating information that belongs to the investigation and they will not be allowed to retain it. Telephone interviews are to be avoided as a rule and only employed in extenuating circumstances. The purpose of documentary evidence should be clearly noted, the location or person from which it was obtained also identified, and dated.

See Annex A for tips to avoid common investigation pitfalls

3. Reporting Stage (Findings of the Investigation)

3.1 Investigators’ Report : The report is a narrative prepared by the investigation team that provides the Senior Officer with all the information required to make a final determination with respect to corrective action if required. It should be logical, clear and concise without personal opinions or extraneous comment. All relevant facts and analysis should be included. The Senior Officer is responsible for reviewing the report to ensure it is complete, that it is logical and grammatical, that all questions are answered, and that all conclusions are substantiated.

See Annex B for a sample outline of an investigation report.

3.2 Senior Officer’s Report and Making Recommendations to the Chief Executive. Based on the investigation report, the Senior Officer will prepare a separate report that clearly sets out his or her analysis as to whether the facts collected during the investigation substantiate a founded allegation of wrongdoing that meets the requirements of section 8 of the Act. The Senior Officer will then make recommendations, if any, to the Chief Executive to undertake the necessary corrective action. Even if the allegations are not established or if they do not constitute wrongdoing, some corrective actions, including improvements to the systems and possibly discipline, may still be required.

Prepared by the Office of Public Service Values and Ethics
Public Service Human Resources Management Agency of Canada
April 2007

In the Initial Stages

• Ensure the discloser provides a thorough complaint or otherwise request clarification on the allegations.
• Examine the discloser’s motives to guard against rare but possible frivolous or vexatious complaints.
• When selecting your investigator(s) guard against bias or an appearance of bias in the composition of the investigating team (for example, former supervisors of one of the parties, acquaintances, etc).
• Make sure to select not only properly trained investigators skilled in the art of investigations but also determine need for expertise in specific areas (financial, contracting, operations, etc).

During the Investigation

• Guard against “tunnel vision” at any stage of the investigation or when assessing a disclosure (do not draw premature conclusions)
• Make sure that, as much as possible, the investigators conduct face to face interviews with witnesses.
• Ensure that investigators take statements in writing and have witnesses sign them (or in the alternative record statements).
• Ensure that investigators follow up on all leads in the interviews and go back for supplementary interviews if necessary.
• Ensure that investigators keep good records of the investigation.
• Make sure that all allegations included in the disclosure and all matters included in the disclosure are investigated.
• Ensure that the respondents are aware of the allegations against them; but avoid disclosing information that could compromise evidence or witnesses.
• The respondents must be afforded an opportunity to advance his or her side of the story before the investigation is completed.
• Act promptly at all phases of the investigation, but an investigation conducted too hastily is as flawed as one that is not conducted in time. Take the time necessary to be thorough. An investigation can be labour intensive.
• Keep a healthy emotional distance from all parties in the investigation.
• Ensure that the report of findings deals with facts, with no extraneous or irrelevant information, and is written in a non-emotional, detached, and non-sensational style. Be wary of too many unsupported modifiers. Make sure that the investigators do not interject bias in the report by adding irrelevant or unsupported information.