Guide to Determining Protected Disclosures under the Public Servants Disclosure Protection Act

Key references in the Public Servants Disclosure Protection Act (PSDPA) to a “protected disclosure”:

  • Section 2: Defines a “protected disclosure” as a disclosure that is made in good faith and that is made by a public servant:
    • in accordance with the Act;
    • in the course of a parliamentary proceeding;
    • in the course of a procedure established under any other Act of Parliament; or
    • when lawfully required to do so.
  • Sections 12 and 13: Public servants may make a “protected disclosure” of wrongdoing to their immediate supervisor, the Senior Officer for Internal Disclosure, or to the Public Sector Integrity Commissioner.
  • Section 12: A “disclosure” is “any information that the public servant believes could show that a wrongdoing has been committed or is about to be committed, or could show that the public servant has been asked to commit a wrongdoing”.
  • Section 19: Prohibits reprisal against a public servant or directing others to take reprisal against a public servant.
Question 1: Depending on the source, when is it a “protected disclosure” under the PSDPA?
Source of information about possible wrongdoing Does this source meet definition of “protected disclosure”? Explanation Action to be taken by organization
Anonymous No

An anonymous disclosure is not considered a protected disclosure under the PSDPA, because a protected disclosure must be made by a public servant. To receive protection, the individual has to identify himself or herself.

The organization can take follow-up action, but it is not considered a protected disclosure under the PSDPA

Identified public servant Yes

Reprisal protections apply.

A disclosure by a public servant is a protected disclosure provided it is in good faith and is made:

  • in accordance with the Act;
  • in the course of a parliamentary proceeding;
  • in the course of a procedure established under any other Act of Parliament; or
  • when lawfully required to do so.

Once the disclosure is received, it is the responsibility of the supervisor/Senior Officer for Internal Disclosure to:

  • process the information; and
  • address the disclosure while protecting the identity of the public servant in accordance with the PSDPA.
Identified public servant who wants to be considered anonymous Yes

Reprisal protections apply.

Once information has been provided to the supervisor or to the Senior Officer for Internal Disclosure that could indicate a possible wrongdoing, and the identity of the public servant is known, it is to be treated as a protected disclosure under the PSDPA.

Once the disclosure is received, it is the responsibility of the supervisor/Senior Officer for Internal Disclosure to:

  • process the information; and
  • address the disclosure while protecting the identity of the discloser in accordance with the PSDPA.
Non-public servant No

The protected disclosure (s. 2) and reprisal (s. 19) provisions only apply to public servants.

The PSDPA includes prohibitions against taking measures toward an employee outside the public sector or against contractors for having provided information to the Public Sector Integrity Commissioner or the Auditor General concerning an alleged wrongdoing in the public sector (s. 42.1 and 42.2).

Question 2: What is the difference between an “inquiry” and a “protected disclosure” under the PSDPA?
Type of information Does this type of information qualify as a “protected disclosure” under the PSDPA? Explanation Action to be taken by organization
General questions related to procedures, PSDPA protections, etc. No

Does not meet the definition of protected disclosure under s. 12 of the Act. This is an inquiry.

Respond to inquiry.

Questions related to a situation involving possible wrongdoing (e.g. seeking information on possible avenues of recourse).

No

If there is no information provided about the possible wrongdoing, then it does not meet the definition of protected disclosure under s. 12 of the Act. This is an inquiry.

A protected disclosure also includes disclosures made in the course of a procedure established under any other Act of Parliament (s. 2)

Respond to inquiry.

Information that the public servant believes could show that a wrongdoing has been committed

Yes

Under s. 12 of the Act, a protected disclosure is made when any information is provided that the public servant believes could show that a wrongdoing has been committed or is about to be committed, or could show that the public servant has been asked to commit a wrongdoing.

It is the responsibility of the supervisor/Senior Officer for Internal Disclosure to:

  • process the information; and
  • address the disclosure while protecting the identity of the discloser in accordance with the PSDPA.
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