Confidentiality and its practical alternatives
This page provides guidance on assessing the likelihood of confidentiality being maintained when a public interest disclosure is made, and then implementing strategies in response to this. It should be read together with our public interest disclosures Guideline C7: Confidentiality.
Under the Public Interest Disclosures Act 1994 (PID Act) authorities are required to keep the identities of reporters of wrongdoing confidential – where this is practical and appropriate. To do this, as well as to facilitate investigation, it may be important to keep both the fact that a public interest disclosure has been made and the substance of the allegations confidential.
The risk of confidentiality not being maintained needs to be managed
Identify at the outset what processes there are for maintaining confidentiality by:
- Obtaining information from the staff member reporting wrongdoing about the likelihood of their identity being known.
- Conducting a risk assessment to assess the likelihood of confidentiality being lost throughout the course of the investigation and any adverse effects arising from that loss of confidentiality.
Questions to consider:
- Has the staff member reported the issue before or said they would do so?
- Can the issues identified be readily attributed to the reporter?
- Can the issues be investigated without identifying the reporter?
- Will the process of gathering evidence alert staff to the fact that a report has been made?
- What is the risk of the subject of the report guessing who made it?
- What is the risk that the subject of the report will threaten or take reprisal action if they guess who made it or once they know a report has been made?
- What is the risk of the reporter suffering reprisal from elsewhere within the authority if their identity is disclosed?
Refer over the page for the steps that you should take depending on the likelihood of maintaining confidentiality.
Exceptions to maintaining confidentiality under the PID Act
If you answer yes to any of the following, then confidentiality does not have to be maintained:
- Has the reporter consented in writing to the disclosure of the identifying information?
- Is it generally known that the reporter has made the public interest disclosure?¹
- Is it essential for the identifying information to be disclosed to satisfy the requirements of procedural fairness?
- Does the identifying information need to be disclosed for the matter to be effectively investigated?
- Is it otherwise in the public interest for the identifying information to be disclosed?
Refer below for the steps that should be taken if a confidential approach is not required.
1 See Guideline C7: Confidentiality for advice about the meaning of the term ‘generally known’.
If the reporter’s identity is likely to remain confidential, adopt an approach that ensures confidentiality is maintained
- Limit the number of people who are aware of the identity of the reporter or information that would tend to identify them.
- Remind each person who has the information that there is a statutory obligation to keep it confidential.
- Assess whether anyone who is aware of the reporter’s identity may have a motive to take reprisals against them or impede the progress of the investigation.
- Put in place procedures to make sure that the reporter can communicate with support people or investigators without alerting others.
Appropriate investigation techniques
Investigators should use approaches that are least likely to result in the reporter being identified.
- Arrange for a ‘routine’ internal audit of an area or activity that covers but is not focussed solely on the issues disclosed.
- Don’t identify a trigger or reason for an audit or investigation, or alternatively allude to a range of triggers without confirming a specific one.
- Ensure that the reporter is interviewed if it is expected that everyone in the workplace would be interviewed.
If the reporter’s identity is unlikely to remain confidential, adopt a proactive approach
Support and protect the reporter
The supervisors and line managers of the reporter should be advised that they are responsible for providing support to the reporter and protecting them from harassment or any other form of reprisal.
Advice and training
Relevant staff, including the colleagues of the reporter and the subject of the report, should be given advice or training about the importance of reporting wrongdoing and the relevant provisions of the internal reporting policy.
Relocation and transfer
If there are concerns about the reporter’s safety or wellbeing, or other factors that would make it impossible for them to remain in their current workplace, consider whether it is practical to move them to:
- another part of the authority
- an equivalent position in a new authority
- alternative employment.
In some circumstances it may be appropriate to relocate the subject of the report.
Proactive management intervention
Tell the colleagues of the reporter and the subject of the report that the report has been made and the general substance of the allegations.
Senior managers should make it clear that it is important staff feel able to make public interest disclosures and that the reporter has acted appropriately in bringing their genuine concerns to light. They should also make it clear to the subject they understand it may be stressful for them that colleagues know about the allegations and that they will be provided with appropriate support.
Senior managers should point out that the protections in the PID Act are likely to apply and provide all parties with a copy of the internal reporting policy, outlining the consequences of taking or threatening detrimental action in reprisal or breaching confidentiality.
Contact us for more information
National Relay Service 133 677
Telephone Interpreter Service (TIS) 131 450
We can arrange an interpreter through TIS or you can contact TIS yourself before speaking to us.
© State of New South Wales, May 2014
This publication is released under a Creative Commons license CC BY 4.0.
|Publication Date||12 April 2019|