Public Servants Disclosure Protection Act - Information on organizational disclosure regimes

Public Disclosures

Public servants should be encouraged to make disclosures within their organization or to the PSIC, particularly since a public servant making a public disclosure may not be entitled to protection under the Act. The Act nevertheless allows that in limited circumstances ^{See Footnote 1} a public servant may make a protected disclosure directly to the public and still be entitled to protection under the Act.

Anonymous Disclosures

Disclosures made anonymously are not part of the PSDPA. For more information, please see Annex B, “Anonymous Disclosures.”

Reprisal Complaints

Complaints related to reprisals must be filed directly with the PSIC and are dealt with through a separate process under the Act.

3. Elements of a Disclosure Regime

The Act requires that chief executives establish procedures in their organization for receiving and managing disclosures under the Act.

Mechanisms for Disclosure Intake

The Act does not specify that a disclosure must be in writing. A disclosure under the Act may be made verbally or in writing.

There are multiple possible ways of formalizing the receipt of disclosures made under the Act within an organization.

• An organization may develop a form for submission of disclosures, to guide public servants in providing relevant information, and make explicit that a disclosure made using the form is being made under the Act.
• An organization may also maintain a telephone number, a protected e-mail address, and/or a secure web site, any or all of which are designated specifically for the receipt and intake of disclosures made within the organization to the Senior Officer or to the public servant’s supervisor.

Some services for managing the receipt and intake of disclosures, such as call centres and e-mail accounts, can be offered by private sector firms. Though contracting with a private firm may have some advantages, it also entails significant risks, including risks related to the protection of information, and the limited knowledge a third party may have of the culture and structure of the organization. The terms of a contract with a private firm should address these risks, by ensuring that:

• all information collected with respect to a disclosure will be stored and managed in accordance with the PSDPA, Access To Information Act, Privacy Act, and Personal Information Protection and Electronic Documents Act;
• all information collected with respect to a disclosure will be stored in Canada;
• any database used to store information with respect to disclosures be subject to a Privacy Impact Assessment, and be approved and registered as a Personal Information Bank; and
• anyone using the private firm to make a disclosure is fully informed about how the information they provide will be used and stored.

Any process for receiving disclosures made under the Act should be clearly identified as such. If an organization chooses to have other ways to accept information that does not meet the requirements of the Act – such as one for making anonymous disclosures – it should be clear to anyone making a disclosure using that process that they will not be entitled to the protections of the Act.

Because of the significant protections against reprisal provided by the PSDPA, organizations are encouraged to formalize their processes for making and receiving disclosures and ensure they are well communicated.

Senior Officers

An organization must designate a single member of the organization as that organization's Senior Officer, among whose duties will be the handling of disclosures of wrongdoing under the Act. ^{See Footnote 2} A Senior Officer should have the following attributes:

• occupy a senior position within the organization;
• be credible with employees, bargaining agents and all levels of management by virtue of experience and trusted to speak truth to power;
• have strong interpersonal skills and the ability to communicate effectively with employees and managers of all levels;
• possess sound judgement and the ability to advise on the PSDPA and relevant legal and policy frameworks, including labour relations matters; and
• be able to carry out or manage administrative investigations.

Information for Employees

The disclosure provisions and procedures of the Act start with the public servant who decides to report a possible wrongdoing. It is important, therefore, that all employees in an organization are well-informed about the Act and the organization's disclosure regime.

Organizations should ensure that all employees know:

• the definition of wrongdoing under the Act and how a disclosure is different from other forms of complaints;
• who is the Senior Officer for the organization;
• how to make a disclosure in accordance with the Act; and
• the protections against reprisal available for a public servant who makes a disclosure under the Act.

Protecting Information

Organizations must ensure the confidentiality of information received and collected in a disclosure, including protecting, to the extent possible, the identity of the person making a disclosure, the identity of the person or persons alleged to have committed any wrongdoing, and the identities of any potential witnesses to the wrongdoing. For further information, please see the document, “Guide for Handling Sensitive Information Under the Public Servants Disclosure Protection Act.”

Preventing Reprisals

Organizations must protect employees from reprisals. For further information, please see Annex C, “Preventing Reprisals.”

4. Roles and Responsibilities in a Disclosure Regime

Senior Officers

A Senior Officer may receive a disclosure from an employee of their organization. A Senior Officer may also receive, by referral from the supervisor, a matter that was the subject of a disclosure made by an employee of the organization to their supervisor.

In dealing with disclosures of wrongdoing, the Senior Officer has a number of responsibilities. ^{See Footnote 3}

• The Senior Officer must provide advice and guidance to a public servant who is considering making a disclosure ^{See Footnote 4}
• The Senior Officer performs initial screening and preliminary analysis of the information received through the disclosure
• If the Senior Officer decides to investigate the matter described in the disclosure, they will choose, mandate, and manage the investigator or investigators, in adherence to the requirements of the Act. (For further information regarding investigations, please see the document, “Guide to Conducting Internal Investigations of Disclosures.”)
• Once an investigation is complete, the Senior Officer will review the results of the investigation, and provide the findings and make any appropriate recommendations to the chief executive of the organization.
• The Senior Officer will provide information to the discloser regarding the outcome of the disclosure

Supervisors

A public servant may make a disclosure to their supervisor. Organizations should establish their own guidelines regarding when supervisors should themselves take the further steps needed to deal with the subject matter of the disclosure, including conducting an investigation if necessary, and when they should refer the matter to the Senior Officer. If the supervisor can investigate the matter and may make a finding of wrongdoing under the Act, organizations should establish a process by which supervisors can consult with and receive guidance from the Senior Officer. Otherwise, a supervisor should refer the matter to the Senior Officer.

Supervisors should be trained in dealing with disclosures, and must be fully aware of the following:

• the definition of wrongdoing under the Act
• that provision of information by an employee regarding a possible wrongdoing should be treated as a disclosure under the Act, which entails the protection of information related to the disclosure and triggers protection from reprisal for the person making the disclosure
• that they must know the identity and role of their organization's Senior Officer and
• that they must collect statistics and other information as may be required with respect to disclosures to satisfy their chief executive's obligation to report annually to the Canada Public Service Agency regarding disclosures made within the organization under the Act

With respect to conducting investigations subsequent to a disclosure, supervisors should be directed to follow organizational procedures and to seek the guidance of their Senior Officer.

If procedures have not yet been established, and information concerning wrongdoing is provided to a supervisor regarding a relatively minor issue, the supervisor may choose to deal with the issue as part of their normal managerial responsibilities, without explicitly invoking the disclosure regime of the organization under the Act. Nevertheless, if the public servant who originally provided the information later files a complaint alleging subsequent reprisal, the initial provision of information to the supervisor may be interpreted as a disclosure made under the Act.

Protected Disclosure

A protected disclosure is a disclosure made in good faith by a public servant, which is:

• in accordance with the Act;
• in the course of a parliamentary proceeding;
• in the course of a proceeding established under any act of Parliament; or
• made when lawfully required to do so.

The full protections of the Act are available only to public servants who have made a protected disclosure or have, in good faith, co-operated in an investigation into a disclosure.

Wrongdoing

A wrongdoing is:

• the contravention of an Act of Parliament or of the legislature of a province, or of any regulations made under any such Act;
• the misuse of public funds or assets;
• gross mismanagement in the federal public sector;
• a serious breach of a code of conduct;
• an act or omission that creates a substantial and specific danger to the life, health and safety of Canadians or the environment; or
• knowingly directing or counselling a person to commit a wrongdoing.

The wrongdoing must occur in or be related to the public sector. Note that under the Act, a reprisal is not included in the definition of wrongdoing. It is treated as a distinct prohibition.