Public Interest Disclosure (Whistleblower Protection) Act Review

By Linda McKay-Panos

The Select Special Ethics and Accountability Committee is currently reviewing four pieces of Alberta legislation: The Elections Act, the Election Finances and Contributions Disclosure Act, the Conflicts of Interest Act, and the Public Interest Disclosure (Whistleblower Protection) Act.  Alberta Civil Liberties Research Centre (ACLRC) welcomes opportunities to make submissions on legislation and policies that relate to our mission: research and education on civil liberties and human rights laws for Albertans. Following is our submission on the Whistleblower Protection legislation.

Bill 4 was tabled in October 2012, with the stated purpose of making a “fundamental change in the way government works….and a ….pledge to Albertans…to lead the way in open, accountable government” (Premier Alison Redford, online: <https://yourvoiceprotected.ca/challenges-of-whistleblower-oversight/>). The Public Interest Disclosure (Whistleblower Protection) Act (“Whistleblower Protection Act”; “The Act”) came into force on June 1, 2013. An Office of the Public Interest Commissioner was created. Although the idea of having legislation in Alberta was generally well received, the Whistleblower Protection Act was critiqued in the early days as being inadequate and partial (see David Hutton Shooting the Messenger: The Need for Effective Whistleblower Protection in Alberta, 2013 Parkland Institute online: <http://www.parklandinstitute.ca/shooting_the_messenger>).

ACLRC has gathered the research and commentary on this legislation and has set out the criticisms and suggestions below (with which we agree):

• The Act only applies to public employees in Alberta, and includes provincial departments, legislative offices, public bodies such as agencies, board, commissions, Crown corporations, health organizations, educational institutions, including post-secondary, public school boards, Charter schools, and private schools that receive public funding.

• The Act does NOT apply to employees in the private sector, contracted employees, including those who are contracted to Alberta Health Services, private health services, even if they receive public funding (e.g., private seniors homes), Crown Prosecutors or solicitors. Compare the United Kingdom’s Public Interest Disclosure Act, 1998 c 23.

o   The Act should be revised to provide comprehensive coverage of workers who are contracted to provide public services and privately-operated healthcare facilities.

• The Act’s definition of “wrongdoing” is unclear. It includes qualifiers such as “substantial and specific danger…”; “gross mismanagement”; “knowingly directing… “ Compare the United Kingdom’s section on protected disclosures: 43B Disclosures qualifying for protection.

(1)In this Part a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show one or more of the following—

(a)that a criminal offence has been committed, is being committed or is likely to be committed,

(b)that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,

(c)that a miscarriage of justice has occurred, is occurring or is likely to occur,

(d)that the health or safety of any individual has been, is being or is likely to be endangered,

(e)that the environment has been, is being or is likely to be damaged, or

(f)that information tending to show any matter falling within any one of the preceding paragraphs has been, is being or is likely to be deliberately concealed.

(2)For the purposes of subsection (1), it is immaterial whether the relevant failure occurred, occurs or would occur in the United Kingdom or elsewhere, and whether the law applying to it is that of the United Kingdom or of any other country or territory.

(3)A disclosure of information is not a qualifying disclosure if the person making the disclosure commits an offence by making it.

(4)A disclosure of information in respect of which a claim to legal professional privilege (or, in Scotland, to confidentiality as between client and professional legal adviser) could be maintained in legal proceedings is not a qualifying disclosure if it is made by a person to whom the information had been disclosed in the course of obtaining legal advice.

(5)In this Part “the relevant failure”, in relation to a qualifying disclosure, means the matter falling within paragraphs (a) to (f) of subsection (1).

o   The Act should be amended to include a definition of “whistleblower” or “whistleblowing”.

o   The Act should be amended to clarify the meaning of “wrongdoing”.

• The Public Interest Commissioner (“Commissioner”) can grant exemptions under section 31. Partial exemptions have been granted to a number of early childhood services and private schools. These entities make disclosure directly to the Commissioner.

• The Commissioner is given discretion over each case under subsection 19(1) of the Act; the wording of this section is “overly vague” and overbroad, such that any scrutiny of departmental decisions is precluded. Further, the decisions of the Commissioner are not subject to an appeals process and the Act states that these decisions may not be challenged before the courts.

o   Amend the Act to remove the overly broad exemptions and discretionary powers given to the Commissioner.

• The Act applies only from June 1, 2013. The Act specifically states in section 3(2) “This Act applies only in respect of wrongdoings that occur after the coming into force of this Act” Manitoba’s whistleblower legislation does not contain a similar clause.

o   Remove subsection 3(2) from the Act. The Commissioner will still retain discretion to refuse to investigate an alleged wrongdoing that occurred more that 2 years previously (see subparagraph 19(2)(a)).

• The Act allows for employees to disclose to a designated officer in their department and if the designate is implicated in the wrongdoing or there is an immediate risk to public health or safety, the employee may disclose to the Commissioner directly.  If the complaint is about a superior or the designated officer, there is a risk that the complaint will not be made at all. The Act does NOT protect employees who disclose to the media, to their MLA or to another public figure.

o   Disclosure to the media should be protected under the Act.

• Each department, office, or regulated body develops protocols for the disclosure of information. The Commissioner does not develop or enforce a common or standard protocol to be followed.

o   Establish a standard set of procedures for disclosure across the public service so that the process is streamlined.

• The Commissioner (similar to the Alberta Ombudsman) is the final arbiter about allegations of wrongdoing or reprisals for the wrongdoings: the Commissioner’s office decides if there will be an investigation, if there will be penalties and what recommendations will be made to offending departments or government bodies. At the same time, the Commissioner is unable to launch an investigation unless there has been a complaint.

o   Amend the Act to provide the Commissioner with authority to launch complaints on his/her own motion.

o   Amend the Act to include enumerated grounds for the Commissioner to consider before declining to launch an investigation.

• As with the Ombudsman, the Commissioner makes recommendations to the department in question, but there is no enforcement or penalty mechanism in the legislation for failure to comply with the recommendations. Reprisals against whistleblowers are subject to increasing fines, but unlike Canada’s Public Servants Disclosure Protection Act, there is no specific process to allocate the funds to the whistleblower as compensation, nor a remedy providing for reinstatement should they be fired or unduly transferred. When she was a MLA in opposition, Premier Notley noted this oversight (see: http://www.assembly.ab.ca/ISYS/LADDAR_files/docs/hansards/han/legislature_28/session_1/20121107_1330_01_han.pdf

• Whistleblowers who are merely seeking advice or information about the disclosure process must work through the internal chain of disclosure, having limited recourse to the Commissioner, are placed in a precarious position. The very department they hold information against sets the procedures whistleblowers must work through, thereby giving the impression that the matter is primarily internal.

• Whistleblowers must prove they have received reprisals or that these are likely.

• Employees must continue to be able to choose other legal remedies, such as collective agreements, wrongful dismissal cases, or human rights complaints as complementary to the process. They should not be placed in the position of choosing one recourse over the other possibilities. If they could, for example, choose human rights as a complementary recourse to their situation, reinstatement is an available remedy.

o   Amend the Act to provide appropriate mechanisms for compensation or redress for those who experience reprisals.

• The Commissioner released three investigative reports to date. The third report was the subject of a joint investigation with the Freedom of Information and Privacy Commissioner. Our Executive Director wrote a summary and critique of this decision – see: ABlawg

• If the purpose of the Act is to promote the public interest through transparency, the Act does not include a requirement to report the specifics of wrongdoings. Annual Reports filed by the Commissioner do not include the specific details of complaints and investigations.  Because of the lack of protection for disclosure to the media or other public avenues, the public may not ever receive the information needed to guarantee transparency.

o   Provide public education as to how the Freedom of Information and Protection of Privacy Act may be used to gain access to information about specifics of wrongdoings (subject to the exemptions in that legislation).

•  While the opposition parties put forward 29 amendments during the debate on Bill 4, none of the amendments was passed. Perhaps these proposed amendments should be consulted for suggestions on amendments to the current Act.

o   All individuals subject to this Act should be educated about their rights and responsibilities under it.