Public Interest Disclosure Management Plan and Procedure

1. Purpose

This management plan and procedure has been prepared to comply with s.28 of the Public Interest Disclosure Act 2010 (the PID Act) and the Public Interest Disclosure Standard No. 1 (PID Standard) issued by the Queensland Ombudsman under s.60 of the PID Act. The Standard requires the Office of the Information Commissioner (the Office) to develop, implement and maintain a management plan for Public Interest Disclosures (PIDs) about the conduct of staff of the Office. The PID Standard also requires the Office to develop and implement reasonable procedures for dealing with PIDs. Public Interest Disclosures do not apply to the Office of the Information Commissioner’s statutory function of independently reviewing decisions made by Queensland Ministers and public sector agencies about access to documents under the Right to Information Act 2009 and the Information Privacy Act 2009.

2. Effective Date

Approved by the Acting Information Commissioner on 27 January 2015.

3. References

• Public Interest Disclosure Act 2010
• Public Interest Disclosure Standard No 1
• Workplace Health and Safety Act 2011
• Workplace Health and Safety Regulations 2011
• Public Service Act 2008
• Office of the Information Commissioner Workplace Health and Safety Policy
• Code of Conduct
• Crime and Corruption Act 2001

4. Public Interest Disclosure (PID) Management Plan

In accordance with the s.28 of the PID Act and s.6.1.1 of the PID Standard the Office is required to implement and maintain a management plan that addresses the following matters:

4.1 Organisational commitment to encouraging the internal reporting of wrongdoing.

The Information Commissioner encourages staff of the Office to report any wrongdoing that is:

• Conduct that could be corrupt conduct (refer Definitions);
• Conduct that could be maladministration that adversely affects a person in a substantial and specific way;
• A substantial misuse of public resources;
• A substantial and specific danger to public health or safety;
• A substantial and specific danger to the environment; or
• A reprisal.

The aim is for the Office to be an organisation where all staff feel confident and comfortable about making a disclosure of wrongdoing. The Information Commissioner will take all reasonable steps to protect a staff member from any detrimental action by way of a reprisal taken because they have made a PID.

4.2 Senior management endorsement of the value to the entity of PIDs and the proper management of PIDs and disclosers.

Senior managers of the Office encourage staff to disclose wrongdoing. Doing so is in accordance with the ethical culture of the Office, in particular, acting with integrity.  Staff who come forward with disclosures of wrongdoing are acting as exemplary citizens by contributing to openness, accountability and good management.

The Office has an obligation to deal with wrongdoing.  If staff come forward with a disclosure of wrongdoing, Managers will:

• Protect the dignity, wellbeing, career interests and good name of all persons involved;
• Protect the discloser from reprisal;
• Respond to the disclosure thoroughly and impartially;
• Deal with any proven instances of wrongdoing; and
• Keep the discloser informed of progress and the outcome of the investigation of their disclosure.

Senior managers of the Office recognize that members of the public may have information about the operations of the Office that may meet the criteria for a PID. Members of the public are encouraged to report this information to the Office’s Director of Engagement and Corporate Services. A PID made by a member of the public will be acknowledged, and the discloser will be informed about the outcome of the PID assessment¹ and any action taken as a result of the disclosure².

4.3 A communication and training strategy for raising employee awareness about PIDs and the Office’s PID procedures.

The Information Commissioner recognizes that for the Office’s PID plan to be successful, staff awareness is critical.  The Office’s communication and training strategy is targeted to increase staff awareness about the Office’s commitment to the PID process and the procedures to do so, include:

• Posting information on the Office’s intranet site
• Providing the Office’s nominated PID officer contact details on the Office’s internal phone list
• Including PID information in the Office’s new starter induction program
• PID training

PID training is incorporated with Code of Conduct and ethics training to all staff. The PID content includes:

• What is a PID
• Identifying wrongdoing
• Support and protection for disclosers
• PID management procedures

4.4 The appointment of a nominated officer to be responsible for issues related to the management of PIDs

The Director, Engagement and Corporate Services (DECS) is the nominated officer responsible for the management of PIDs for the Office.

A staff member of the Office or a member of the public can make a disclosure to the DECS in the following ways:

Email: OIC.PID@oic.qld.gov.au

Mail: Attention: DECS
PID Co-ordinator
Office of the Information Commissioner
PO Box 10143 Adelaide Street
Brisbane Qld 4000

Phone: (07) 3234 7373

4.5 Ensure that effective systems and procedures are in place for issues arising from PIDs to inform improvements to service delivery, business processes and internal controls

At the conclusion of a PID investigation, the DECS may consult internally to assess whether any changes are required to the Office’s policies, procedures or practices. The MCES will make a report to the Information Commissioner with recommendations for change if appropriate.

4.6 Provide a mechanism for regular evaluation and monitoring of the effectiveness of the PID policies and procedures.

The DECS will conduct an annual review of the effectiveness of the Office’s PID management Plan and Procedure and make a report to the Information Commissioner.

5. Public Interest Disclosure (PID) Procedure

In accordance with the s.28 of the PID Act and s.6.1.2 of the PID Standard, the Office is required to implement and maintain a management plan that addresses the following matters:

5.1 Clear identification of who is covered by the procedure and the types of wrongdoing to be reported. This procedure applies to members of the public and staff of the Office seeking to make a PID.

5.1.1

A member of the public may make a PID about the conduct of staff of the Office if they have reasonable grounds for believing there is wrongdoing, or have information that tends to indicate wrongdoing that may be:

• a substantial and specific danger to the health or safety of a person with a disability; or
• a substantial and specific danger to the environment; or
• a reprisal (if proved)

5.1.2

A staff member of the Office may make a PID about the conduct of staff of the Office if they have reasonable grounds for believing there is wrongdoing, or have information that tends to indicate wrongdoing that may be:

• a substantial and specific danger to the health or safety of a person with a disability; or
• a substantial and specific danger to the environment; or
• a reprisal (if proved)
• corrupt conduct
• maladministration that adversely affects a person’s interests in a substantial and specific way
• a substantial misuse of public resources
• a substantial and specific danger to public health or safety

5.2 Encourage the reporting of wrongdoing

The Information Commissioner and managers of the Office encourage the reporting of PIDs by:

• stating their commitment to encouraging the internal reporting of wrongdoing (refer 4.1)
• endorsing the value to the entity of PIDs and the proper management of PIDs and disclosers (refer 4.2)
• implementing communication and training strategies (refer 4.3)
• ensuring that effective systems and procedures are in place for issues arising from PIDs (refer 4.4)
• reviewing the effectiveness of the Office’s PID management Plan and Procedure (refer 4.5)

5.3 Establish a clear reporting system for both internal and external disclosures.

5.3.1 Reporting mechanisms

To be treated as a PID, a disclosure must be made to a ‘proper authority’³ (refer Definitions) A member of the public or a staff member of the Office can make a PID as follows:

• to the Director, Engagement and Corporate Services by way of:

Email: OIC.PID@oic.qld.gov.au

Mail: Attention: DECS
PID Co-ordinator
Office of the Information Commissioner
PO Box 10143 Adelaide Street
Brisbane Qld 4000

Phone: (07) 3234 7373

• a public sector entity⁴ that has the power to investigate or remedy the matter
• a Member of the Legislative Assembly

A staff member of the Office can also make a PID about the conduct of another staff member or the Office by making the disclosure to:

• someone in the Office
• a public sector entity that has the power to investigate or remedy the matter (refer Definitions)
• a Member of the Legislative Assembly

A PID can be made in writing, orally and/or anonymously. It should be noted that anonymous PIDs can be more difficult to investigate.

5.3.2 Internal reporting by staff making a PID

Under the PID Act, every public service entity is a proper authority (refer Definitions) for receiving PIDs about its own conduct or the conduct of its staff. Therefore, the Office is an appropriate entity to receive PIDs about its own conduct or the conduct of its staff.

A staff member who decides to report wrongdoing internally should make a disclosure to their immediate supervisor. If the staff member believes their supervisor may be involved in the wrongdoing, the disclosure should be made to their supervisor’s manager, or to the DECS.  If the supervisor or manager who receives the information suspects that it may constitute a PID, they must immediately refer the matter to the DECS for consideration.

If the DECS is alleged to be involved in the wrongdoing, the matter must be referred immediately to the Information Commissioner for consideration.

Despite the above procedures, a staff member may make a disclosure at any time to the Information Commissioner or to any manager⁵.

5.3.3 External reporting by staff making a PID

A staff member can make an external disclosure to a Member of Parliament or to another public sector entity that has the power to investigate or remedy the matter.

A staff member who decides to make a disclosure to another public sector entity should contact that entity and find out how to make a disclosure to them. Another entity will be a proper authority for the purpose of receiving the disclosure if the information relates to:

• the conduct of that entity or any of its public officers
• anything the entity has the power to investigate or remedy
• the conduct of another person that could be a reprisal relating to a previous disclosure.

The below table is a guide to the appropriate entities for receiving PIDs about the conduct of the Office or one of its staff members.

5.4 Ensure the assessment of the risks of reprisal referred to in s.6.6 of the PID Standard

5.4.1 Protection for staff making a PID

The Office aims to ensure that staff members will be protected from detriment or reprisal (refer Definitions) as a result of reporting wrongdoing.

The risk of reprisal will be assessed by the DECS in consultation with the discloser when the disclosure is made. An appropriate plan will be developed and put in place to minimize the risk of reprisal.

Any staff member who makes a reprisal is committing an indictable offence and is liable to disciplinary action.

Any staff member who believes that they have been subjected to a reprisal should report the matter immediately to the Information Commissioner or the DECS who will consider the report, investigate if necessary, and decide whether there is an obligation to refer the matter to the CCC under s.38(2) of the Crime and Corruption Act 2001.

5.4.2 Reasonable management action is not a reprisal against a staff member

If the discloser is a staff member, making a PID does not protect the discloser from disciplinary or criminal action if the discloser has been involved in corrupt conduct. A discloser remains subject to reasonable management action (refer Definitions) in relation to their work conduct.

5.5 Means for complying with the confidentiality requirements of the PID Act

The Office aims to maintain confidentiality in the management of disclosures in order to:

• minimize the risk of a discloser suffering a reprisal
• avoid the effectiveness of any investigation being compromised
• protect the reputation of any staff member whose conduct is the subject of an unsubstantiated disclosure.

Staff members who obtain personal information as part of their involvement in managing the disclosure process, must not make a record of such information, or intentionally or recklessly disclose it, except as permitted by the PID Act⁶.

5.6 The rights of review, both internal and external

5.6.1 Internal review

Where a decision is made not to investigate or deal with a PID, the discloser must be provided written reasons for the decision. The discloser may then apply to the Information Commissioner for a review of the decision within 28 days of receiving the written reasons⁷.

Unless the Information Commissioner has been involved in the assessment or investigation of the disclosure, the Information Commissioner may conduct a review of the decision or action taken⁸, on receipt of a written application by the staff member or other discloser.

5.6.2    External review

There is a right to apply to the Queensland Industrial relations Commission⁹ or the Supreme Court¹⁰ for an injunction about a reprisal in certain circumstances.

A right of review to the Supreme Court under the Judicial Review Act 1991 may be available in respect to a question of law arising out of a decision made.

5.7 Roles and responsibilities of key staff in the Office’s management of PIDs

The DECS is the nominated officer with responsibility for the management of PIDs within the Office. The table below describes more specific responsibilities:

5.8 The rights of staff members who are the subject of a PID

The requirement to maintain confidentiality does not affect the obligation to provide natural justice to the subject staff member if their rights would be detrimentally affected by doing so.

The information given to the subject must not reveal, or be likely to reveal the discloser unless:

• it is necessary to afford natural justice and
• it is unlikely a reprisal will be taken against the discloser

The subject has the right to:

• be informed of the alleged wrongdoing at a time determined appropriate by the DECS or Information Commissioner
• make a response
• be treated fairly
• have the matter handled confidentially
• have the matter investigated by an impartial person

6. Definitions

Corrupt Conduct – conduct of a person, regardless of whether the person holds or held an appointment, that:

• adversely affects, or could adversely affect, directly or indirectly, the performance  of functions or the exercise of powers of:
• • a unit of public administration; or
  • a person holding an appointment; and
• results, or could result, directly or indirectly, in the performance of functions or the exercise of powers in a way that:
• • is not honest or is not impartial; or
  • involves a breach of the trust placed in a person holding an appointment, either  knowingly or recklessly; or
  • involves a misuse of information or material acquired in or in connection with the performance of functions or the exercise of powers of a person holding an appointment; and
• is engaged in for the purpose of providing a benefit to the person or another person or causing a detriment to another person; and
• would, if proved, be:
• • a criminal offence; or
  • a disciplinary breach providing reasonable grounds for terminating the person’s services, if the person is or were the holder of an appointment.

Detriment – includes:

• personal injury or prejudice to safety;
• property damage or loss;
• intimidation or harassment;
• adverse discrimination, disadvantage or adverse treatment about career, profession, employment, trade or business;
• financial loss;and
• damage to reputation, including personal, professional or business.

Proper authority – persons and organisations authorized under the PID Act to receive public interest disclosures. Examples include:

• a public sector organization that is the subject of the PID. A public sector entity is a proper authority if the disclosure is about the conduct of that entity or its staff.
• an entity that has authority to investigate the matter. For example, the Crime and Corruption Commission is a proper authority for disclosures about official misconduct.
• the Chief Judicial Officer of a court or tribunal when the report is about suspected official misconduct or reprisal by judicial officers.
• a Member of the Legislative Assembly (an MP).

Public Interest Disclosure (PID) – a disclosure of information specified in the PID Act (sections 12 and 13) and made to an appropriate public sector entity that has the responsibility or power to take appropriate action about the information disclosed or to provide an appropriate remedy.

Reasonable management action - includes a reasonable:

• appraisal of work performance
• requirement to undertake counselling
• suspension from the workplace
• other disciplinary action

Reprisal – causing, attempting to or conspiring to cause detriment to another person because, or in the belief that, they have made, or intend to make, a PID.

Staff - includes full time, part time, temporary, casual or on contract of service. Excludes contractors, consultants and volunteers for the purpose of the PID Act.

[1] Refer s.12(3) and s.13(3) of the PID Act for assessment criteria
[2] Excludes personal information
[3] Defined in s.5 PID Act
[4] Defined in s.6 PID Act
[5] Refer s.17 PID Act
[6] Refer s.65 of the PID Act
[7] Refer s.30 of the PID Act
[8] Refer s.46 of the PID Act
[9] Refer s.48 of the PID Act
[10] Refer s.49 of the PID Act