Public Servants Disclosure Protection Act - Information on handling sensitive information
Table of Contents
Information relative to disclosures must be managed effectively and efficiently through its life cycle, and with regard to restrictions in the Public Servants Disclosure Protection Act (PSDPA) and other Acts that restrict the distribution of information. Furthermore, maintaining confidentiality surrounding a disclosure is an essential element of the protections offered by the PSDPA to those who make disclosures.
In addition to this guide, a ll chief executives, supervisors, and senior officers should consult with their organization’s experts responsible for the collection, retention and protection of information to ensure that organizational policies, procedures and guidelines are also followed, and to support an effective disclosure regime.
2. Roles and Responsibilities
To support employees coming forward to disclose possible wrongdoing, each chief executive is required to:
- Effectively safeguard information and protect the identity of all persons involved in the disclosure of wrongdoing process, while respecting the principles of procedural fairness and natural justice;
- Establish organizational procedures or practices for the secure handling of records created or provided under this Act;
- Ensure that disclosure records are treated in accordance with the Access to Information Act (ATIA), the Privacy Act (PA), and the Personal Information Protection and Electronic Documents Act (PIPEDA). For further information on provisions related to the PSDPA in these Acts, please see the “Guide to Access to Information and Privacy Considerations under the Public Servants Disclosure Protection Act”.
Public Sector Employees
When making a disclosure
The PSDPA contains several provisions that permit or restrict the kind of information that public sector employees can provide when making a disclosure of wrongdoing as follows:
Generally, a public servant may disclose any information to the Public Sector Integrity Commissioner (PSIC) the public servant believes could show wrongdoing has been committed or is about to be committed, or that could show that the public servant has been asked to commit a wrongdoing with the following exceptions:
- In making a disclosure of wrongdoing, public sector employees must provide no more information than is necessary to make the disclosure;
- Employees must follow established organizational procedures or practices for the secure handling, storage, transportation and transmission of information or documents;
- Employees can disclose information that is otherwise restricted under other Acts of Parliament except those set out in schedule 3 of the PSDPA, which could be highly injurious if the information is released. This includes information gathered under the Canadian Security Intelligence Service Act, section 18; the DNA Identification Act, section 6; the Sex Offender Information Registration Act, section 16; the Witness Protection Program Act, section 11; and the Youth Criminal Justice Act section 129;
- Cabinet confidences and any solicitor-client privileges cannot be disclosed to the Public Sector Integrity Commissioner;
- Employees cannot disclose information that is special operational information within the meaning of subsection 8(1) of the Security of Information Act (see Annex A);
- Persons employed in the Office of the Auditor General of Canada, the Office of the Commissioner of Official Languages, the Office of the Information Commissioner of Canada, or the Office of the Privacy Commissioner of Canada as named in schedule 2 of the PSDPA may disclose information only if the wrongdoing to which the information relates involves the portion of the public sector in which he or she is employed;
- There is special provision within the Act to allow the dissemination of news and information by the Canadian Broadcasting Corporation.
- All existing provisions created by or under any other Act of Parliament that restrict the release or disclosure of information continue to apply in the case of public disclosures made under the PSDPA.
After making a disclosure
- Once a disclosure has been made, the person who made the disclosure shares in the responsibility to maintain confidentiality with respect to the disclosure. Failure to protect confidentiality may affect the integrity of any investigation into the disclosure, and may limit or eliminate the reprisal protections available to the person who made the disclosure.
The supervisor is the first level of management to whom the public servant can make a disclosure of wrongdoing. As a result the supervisor must:
- Adhere to the same standards as senior officers in order to ensure the appropriate security of the disclosed information;
- Follow established organizational procedures or practices for the secure handling, storage, transportation and transmission of information or documents;
- Notify the senior officer of disclosures made to him or her; and
- Keep in mind the themes of procedural fairness and natural justice.
- All records gathered related to a disclosure of wrongdoing or an investigation should ultimately be given to and kept under the control of the senior officer. This will help to ensure accuracy in reporting and to lessen the risk of release of information contrary to ATIA, PA and PIPEDA provisions related to the PSDPA.
The public servant can make a disclosure of wrongdoing to either his or her supervisor or the senior officer designated for that purpose. The senior officer may receive the disclosure directly from the public servant, or the matter may be referred by a supervisor to the Senior Officer for follow-up. As a result:
- The senior officer must ensure the information is protected and follow established organizational procedures or practices for the secure handling of information or documents;
- Safeguard information and protect the identity of all persons involved in the disclosure of wrongdoing process to the extent possible while adhering to the principles of procedural fairness and natural justice.
Public Servants Disclosure Protection Tribunal Proceedings
- Generally, Tribunal hearings are conducted in public;
- A hearing before the tribunal may be held in camera at the request of any party if the party establishes to the satisfaction of the tribunal that the circumstances of the case so require.
- Public Servants Disclosure Protection Act
- Security of Information Act (Section 8(1))
- Canadian Security Intelligence Service Act
- DNA Identification Act
- Access to Information Act
- Privacy Act
- Sex Offender Information Registration Act
- Witness Protection Program Act
- Youth Criminal Justice Act
- Canada Evidence Act (Section 39(1))
- Policy on the Management of Government Information
- Government Security Policy – Operational Standard for the Security of Information Act
- Duty of Loyalty, Office of Public Service Values and Ethics
Definitions of “Special Operational Information” and “Persons Permanently Bound to Secrecy” from the Security of Information Act, Section 8(1)
- “person permanently bound to secrecy”
- a current or former member or employee of a department, division, branch or office of the federal public administration, or any of its parts, set out in the schedule; or
- a person who has been personally served with a notice issued under subsection 10(1) in respect of the person or who has been informed, in accordance with regulations made under subsection 11(2), of the issuance of such a notice in respect of the person.
- “special operational information”
means information that the Government of Canada is taking measures to safeguard that reveals, or from which may be inferred,
- the identity of a person, agency, group, body or entity that was or is intended to be, has been approached to be, or has offered or agreed to be, a confidential source of information, intelligence or assistance to the Government of Canada;
- the nature or content of plans of the Government of Canada for military operations in respect of a potential, imminent or present armed conflict;
- the means that the Government of Canada used, uses or intends to use, or is capable of using, to covertly collect or obtain, or to decipher, assess, analyse, process, handle, report, communicate or otherwise deal with information or intelligence, including any vulnerabilities or limitations of those means;
- whether a place, person, agency, group, body or entity was, is or is intended to be the object of a covert investigation, or a covert collection of information or intelligence, by the Government of Canada;
- the identity of any person who is, has been or is intended to be covertly engaged in an information- or intelligence-collection activity or program of the Government of Canada that is covert in nature;
- the means that the Government of Canada used, uses or intends to use, or is capable of using, to protect or exploit any information or intelligence referred to in any of paragraphs ( a) to ( e), including, but not limited to, encryption and cryptographic systems, and any vulnerabilities or limitations of those means; or
- information or intelligence similar in nature to information or intelligence referred to in any of paragraphs ( a) to ( f) that is in relation to, or received from, a foreign entity or terrorist group.
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