Whistleblowing on how the government defines 'prompt'

Alison Crawford – April 27, 2010

There has been an awful lot of talk lately about loopholes and opaqueness regarding the government's new Lobbying and Conflict of Interest Acts.

Well, you might want to add the Public Servants Disclosure Protection Act (otherwise known as the whistleblowers' act) to that list.

In April 2008, an unnamed Mountie made a complaint under the government's new law and requested a review of the decision-making process behind the Mounties' costly and controversial purchase of two incompatible computer records management systems (see my original story here.) The investigation was completed last November and I have learned there were, indeed, "findings of wrongdoing."

Yet six months later, those findings are still a mystery. And it may well come down to how different government agencies interpret the word "promptly". You see, section 11.1.c of the whistleblowers' act stipulates that if any wrongdoing is found, the government agency or department must "promptly provide public access to information that describes the wrongdoing, including information that could identify the person found to have committed it if it is necessary to identify the person to adequately describe the wrongdoing."

However when one consults the Public Servants Disclosure Protection Act section of the RCMP web site, readers are informed that for 2008/2009, there are "no founded cases of wrongdoing to report".

Curious, I turned to the Access to Information Act and requested the findings of the investigation. A disappointingly slim brown envelope from the RCMP's Access to Information and Privacy office arrived on my desk yesterday. Inside, a letter informed me that "all of the information you have requested qualified for exemption under subsection 16.5 of the Access to Information Act."

Now that's a completely new one to me. But the RCMP helpfully enclosed the text of subsection 16.5. It says a government institution may refuse to disclose any record "that contains information created for the purpose of making a disclosure under the Public Servants Disclosure Protection Act or in the course of an investigation into a disclosure under that Act."

I found it a little hard to believe everything in that file would qualify for exemption. ATIP coordinators are capable of parsing and redacting secret information from government documents. And I was not looking for the identity of the whistleblower or anything else that might be deemed to be sensitive intelligence.

That's when I took up the Mounties' offer to discuss my request with Staff Sergeant Lee Froehlich. It didn't take long for her to clearly and patiently explain the concept of a "mandatory class exemption." She says that under access to information legislation, she has absolutely no discretion to release ANYTHING that falls under the Public Servants Disclosure Protection Act. "Not even to the whistleblower?" I asked. "Not even the whistleblower," Froehlich replied.

So, to summarize, government departments are required under the whistleblowers' act to promptly disclose all findings of wrongdoing. And if they don't, ATIP can't help you.

Just as many political observers are scratching their heads over the Rahim Jaffer affair - and the increasing number of oddities in the government's Lobbying and Conflict of Interest legislation, the whistleblowers' act is also suffering from growing pains. How could anyone enforce section 11.1.C of the Public Servants Disclosure Protection if there is no clear understanding of the word "promptly?"

It is curious that legislators continue to use vague words such as "promptly" when writing new laws. What we are left with is that the law designed to protect public servants also allows the government to tiptoe around the disclosure of any wrongdoing.

Update:

Earlier this week I followed up with Treasury Board, overseer-at-large of the Public Servants Disclosure Protection Act. Here are my questions and the answers I received:

Question: What is TB's definition of the word "promptly" under 11.1.C of the Public Servants Disclosure Protection Act?
Response: The Public Servants Disclosure Protection Act does not define "promptly". We expect Chief Executives to make information about found cases of wrongdoing public as soon as possible.

Question: The Public Servants Disclosure Protection Act mandates public reporting of cases of found wrongdoing. Are there any consequences if an organization fails to disclose such cases?
Response: Under the Public Servants Disclosure Protection Act, the Chief Executive is responsible for promptly disclosing cases of found wrongdoing. Not disclosing cases of wrongdoing, as required by the PSDPA, could constitute wrongdoing under that Act which may lead to disciplinary action being taken.

So in short, not reporting wrongdoing could constitute wrongdoing and that, I presume, would also have to publicly reported promptly...or as soon as possible...or whenever.

Original article on CBC website