[Editor’s note: The Tyee’s legislative bureau chief, Andrew MacLeod, spoke Tuesday about B.C.’s new Public Interest Disclosure Act at a conference organized by the provincial ombudsperson on “Promoting Integrity in the Public Sector.” The following is adapted from his presentation.]
As a reporter who has covered the British Columbia legislature for 12 years, and politics and public policy longer than that, one of my core beliefs is that institutions tend to benefit from sunlight.
Even the possibility of having a light shone in helps keep people honest. It’s in situations where there’s little opportunity for oversight — as we saw at the B.C. legislature — that people seem to feel free to take advantage.
From that point of view, B.C.’s Public Interest Disclosure Act to protect whistleblowers is a step forward.
The idea, as Attorney General David Eby described it when he introduced the bill, is to “encourage employees to report serious wrongdoing by protecting them from reprisals associated with such reporting.”
The law was modelled on best practices from other jurisdictions, particularly Manitoba’s legislation. Enacting such a law was one of the recommendations from the B.C. ombudsperson’s investigation into the wrongful 2012 health ministry firings.
Under the new law, passed in the spring of 2018 and expected to be brought into force shortly, employees can report wrongdoing internally within the part of the government where they work, and also have the option of going to the ombudsperson. In both cases the law requires that the concerns be followed up on, and it includes a requirement for annual reporting, which Eby suggested would “ensure accountability to the public.”
This is all positive, but I would argue that it remains to be seen just how big a step it is. And there are clearly further steps that could be taken to strengthen whistleblower protection, particularly around who is covered and the requirements for reporting out.
From a reporter’s perspective, the legislation’s goals appear to overlap with what many of us believe we already do.
We provide a venue where people can come forward with concerns, where we hear and assess what they have to say, look for ways to corroborate or refute it, and when merited report what we learn to the public. It is work that we do in the public interest, and it’s essential in a democracy. We’ve been doing it for hundreds of years, usually at no cost to the taxpayer.
So it’s worth noting that under the whistleblower law, with very limited exceptions, an employee who takes their concerns to the media or finds a way to go public that’s not through one of the prescribed routes does not receive the act’s protection from retaliation.
Rather than supporting or encouraging the media’s role in holding power to account, the act has the potential to create an incentive to have concerns dealt with internally or via the ombudsperson’s office instead.
That would be fine from a public interest point of view if you felt concerns would be handled as well as or better than they are by the media, with as much transparency and public accountability.
But a couple points about how the law is written lead me to doubt they will be.
The first major issue, though, is just how far the new law extends.
In the case of the legislature scandal, for example, where senior officials were accused of various misdeeds including inappropriate spending, misappropriating public property and claiming undeserved retirement payments, the law would have made no difference whatsoever.
At this point it doesn’t cover the legislature and there don’t appear to be plans to extend it to provide protection for whistleblowers’ working there. The ombudsperson is right to have called for the legislature to be included, and I hope the office continues to push for that.
Another gap, at least for now, is the lack of coverage of the wider public service. Health authorities, Crown corporations, school boards, local governments and others outside of the core government will be added at some later date not yet specified. That expansion should be made as soon as possible.
Nor does the law cover people who are not employees, such as contractors. They should be included. In many cases they are positioned to see wrongdoing, but they are in an even more precarious position than employees and therefore have even more incentive to stay silent.
One final point about the law’s reach: Consideration should also be given to extending protection to workers in the private sector, as Australia now does.
Another concern is that some cases won’t fit neatly into the new law. Often the problem isn’t “wrongdoing,” but the failure of public bodies to act in the public interest or on the best evidence.
During debate, Eby said the legislation is intentionally limited. “The idea is that this act is around reporting serious wrongdoing, offences under various acts. Making a public policy decision that someone doesn’t agree with does not rise to that level.”
It’s a federal example, but I’m not sure how the new B.C. law would apply in a case like that of Sylvie Therrien, who has said publicly that as an employment insurance investigator she and others were told to find ways to save money by denying people EI benefits. Would that be seen as a case of the government breaking the law, entitling a similar employee in B.C. to protection? Or a matter of public policy?
One can imagine many cases where civil servants concerned about public policy decisions, especially when those decisions may be legal but still put people at risk, would benefit from being sure they would be protected as well.
The other major issue, as I see it, is around disclosure.
It can be tough to legislate reporting requirements in a way that gets them right. Federally, where a similar act has been in place for more than a decade, a House of Commons committee’s review in 2017 found that “the mandatory annual reporting as prescribed under the act is inadequate to provide a meaningful evaluation of the effectiveness of the disclosure mechanisms.”
In B.C., for processes that are handled internally, each public body is required to make an annual report on its website. For ones that don’t, that reporting will be handled by the ombudsperson’s office. While that does make the reports publicly available, it also has the potential for inconsistent handling of the reports and for ones that could be interesting failing to come to public attention.
For a reporter, if 30 or more websites may have reports, that’s a lot of places to check. Put another way, if the reporter’s job is to look for needles in haystacks, this law creates a whole bunch of new haystacks and does little to help identify where there might be needles or which ones might be interesting.
A cynical person might suspect that’s the point. The law provides an outlet for people to identify wrongdoing, while at the same time reducing the chances reports of that wrongdoing will find their way into news headlines.
I also know from experience that reports that public bodies are supposed to make available publicly, such as reporting under the Financial Information Act, are not consistently provided. Some public bodies meet their deadlines and make them easily accessible. Others do not.
Even when the disclosures come to a reporter or anyone else’s attention, there are limits on what is likely to be included in them.
Chief executive officers or their delegates need to report the number of disclosures received, the number they acted on and the number they did not. They need to say how many investigations they commenced, and in cases where they found wrongdoing they need to describe the wrongdoing, provide their recommendations and say what corrective action was taken.
But the law also requires them to balance the disclosure with privacy concerns. They are not to “unreasonably invade a person’s privacy,” reveal the identity of the person who made the disclosure, or reveal the identity of someone who was the subject of an investigation.
After privacy considerations are taken into account, it seems unlikely that the resulting reports will answer all of the “who, what, where, when, how and why” questions the way media reporting would.
In the case of the ombudsperson, the law allows for public comments, but leaves it to the official’s discretion. That is, while disclosure to the public is allowed, it’s not required.
In some cases, such as when no wrongdoing has been confirmed, there’s likely to be even less detail shared with the public.
An argument could be made that there’s little public interest in sharing reports that found no wrongdoing. It’s an argument, however, that assumes the ombudsperson will get it right every time. While that may indeed turn out to be the case, I’d argue that there is value in being able to look over the ombudsperson’s shoulder to see what they have considered.
A useful comparison might be to the court system, where decisions are made in much fuller daylight. The public has a right to see the evidence that a judge or jury has considered and reasonable people may have differing opinions on whether or not they made the right decision. That’s healthy and allows people to have faith in the process. The courts don’t only report out the cases where a judge finds a guilty verdict, and we wouldn’t have much respect for the institution if they did.
Another thing I’d like to raise is the question of situations where a whistleblower should rightly be ignored.
I should mention that I don’t tend to think in terms of “whistleblowers.” It strikes me the term assumes the person coming forward has something true and useful to say. That may turn out to be the case, but often that can only be determined after some time has passed.
Instead what a reporter has is a “source” or an “informant” or just “somebody with a bee in their bonnet” who may or may not have a story to tell that is true and that’s useful for the public to hear. Maybe they are blowing a whistle that needs to be blown, or maybe they’re a crank. Part of the reporter’s job is sorting that out, and I can tell you it’s often very hard to tell.
In the case of the health firings, for example, the person who complained of alleged wrongdoing followed a route that was actually quite similar to what’s set out in the law. She reported her suspicions to her supervisors and gave them a chance to act. When they didn’t, she took her concerns to the auditor general, who then put pressure on the ministry to investigate.
From the ombudsperson’s report on the matter: “Although this complaint was almost entirely inaccurate, the ministry did not assess its factual validity at the outset. Instead, the ministry asked a fairly inexperienced employee to conduct an initial review of the complaint.”
So the problem was not a whistleblower who failed to be taken seriously, or who suffered reprisals. In fact, it was the opposite. An investigation got carried away and decision-makers trusted that what they were hearing was true and needed to be acted on.
Perhaps with the new legislation the ombudsperson’s office would have come in much earlier to oversee the investigation and help the ministry avoid the mistakes they made. One hopes. Certainly the office did a great job cleaning up the mess. But in a case like that, where many, many people were misled, I wouldn’t count on it.
From a reporter’s point of view, by the way, the truth on the health firings was not immediately obvious either. Even for those of us who were skeptical when the firings were announced, it took two years for the government’s justification to start to unravel and five years before it fully fell apart.
So, what in the end will change with the new law?
I think many people working in the government will continue to see going to the media as a useful option. At least I hope so. Compared to an official who reports out once a year, possibly with key details missing, talking to a reporter will be seen as a comparatively quick and thorough route. We work with a speed that is a better fit for the four-year election cycle. Anything important that you bring to us will get its airing in plenty of time for voters to take it into consideration when they go to the polls, which matters in a democracy.
I should mention as well that it’s been suggested that whistleblower laws help whistleblowers avoid the risk of being sued for defamation. In the media, of course, we work in a legal environment where we’re aware that someone who feels damaged by a story can sue, and so we are very careful to make sure we are reporting in a way that is fair and balanced that will protect both our sources and us from legal action.
So while I think that the law is a step forward, even without the improvements I’ve suggested, I think many people will still find briefing a reporter — or anonymously supplying them with a brown envelope with documentation that tells a story — will be more efficient and effective.
It certainly seems to still be the case federally, and anywhere else that already has such a law, that leaks still happen regularly.
Ideally, the public service would already have a culture where providing feedback and reporting problems were encouraged and acted on. Realistically I know that in many public bodies that’s not the case, and that many people fear repercussions when they draw attention to problems. This law should, at least in some cases, help with that.
Even better would be to send a clear message that people are free to speak their minds, to raise concerns when they have them, and that there won’t be repercussions, even if those concerns or comments find their way into the press.