Recording and reporting public interest disclosures
The Public Interest Disclosure Act 2010 (PID Act) requires chief executive officers of public sector entities to establish procedures that ensure:
- public officers who make Public Interest Disclosures (PIDs) are supported
- public officers are protected from reprisal
- the entity has a PID management program that complies with the PID Standards
- PIDs made to the entity are properly assessed, investigated and wrongdoing actioned.
PID Standards - Record keeping requirements
Public Interest Disclosure Standard No. 3/2019 - Public Interest Disclosure Data Recording and Reporting (PDF 138.6KB) (PID Standard 3/2019) sets out the systems and procedures public sector entities must establish to meet their record keeping obligations under ss29 and 33 of the PID Act, including:
- keeping proper records of PIDs (s29) and
- providing information to the oversight agency (s33).
Record-keeping
Public sector entities must establish and maintain a PID record-keeping system that is appropriate to the nature, size and geographic spread of the entity to record PIDs and possible PIDs.
The entity must keep a record of:
- the name of the person making the disclosure (if known)
- the information disclosed
- the name of the entity that referred the disclosure (if relevant)
- any action taken on the disclosure, and
- all other information required under a standard made under s60 of the PID Act.
As set out in PID Standard 3/2019, the PID record-keeping systems must be:
- accurate
- complete
- secure
- confidential.
Reporting to the oversight agency
Public sector entities are required to report data about PIDs they receive to the Queensland Ombudsman (QO). In accordance with the PID Act, the QO is required to report annually to Parliament on the PIDs made across the public sector. This information is published in the QO's annual report.
Agencies report their PID data in a database administered by the QO called RaPID. Agencies must nominate at least two authorised officers to access and populate the RaPID database. Entities can only view data entered by their own agency.
Confidentiality
Agencies must ensure they record and mange PIDs according to the confidentiality requirements of s65 of the PID Act.
Under s65(1) a person who obtains confidential information because of their involvement in the administration of the PID Act must not or intentionally or recklessly disclose the information, except in certain circumstances set out in s65(3) of the Act. It is an offence to unlawfully disclose confidential PID information.
What is confidential information?
Under s65(7) confidential information includes:
- identifying information about the person who makes a PID (discloser)
- identifying information about the person about whom a PID is made (subject officer)
- the information contained in the PID (subject matter of the PID)
- information about an individual’s personal affairs
- information that, if disclosed, may cause detriment to a person.
When confidential information can be disclosed?
Section 65(3) sets out the specific circumstances where disclosure of confidential information is allowed, including:
- for the purpose of administering the PID Act (for example, to make a record required under the PID Act or refer a PID to another public sector entity)
- to comply with another Act (for example, to refer a PID of corrupt conduct to the Crime and Corruption Commission as required under the Crime and Corruption Act 2001)
- for a proceeding in a court or tribunal
- if the person to whom the confidential information relates provides written consent
- circumstances where it is not reasonable to obtain the person’s consent, and making the record or disclosing the confidential information is unlikely to harm the interests of the person and is reasonable in all the circumstances (for example, to refer a PID to another proper authority for action)
- to provide for the safety or welfare of a person (for example, to arrange for external counselling to be provided to the discloser or a witness).
How is natural justice balanced with confidentiality?
Under s64(4) the PID Act confidentiality requirements do not affect natural justice obligations owed to a person whose rights would otherwise be detrimentally affected.
However, s65(5) states identifying information can only be disclosed where both of the following are met:
- it is essential to do so under the principles of natural justice, and
- it is unlikely a reprisal will be taken against the person making the PID because of the disclosure.
Before releasing information that identifies a discloser an agency should consider the following:
- Is there sufficient and meaningful information that can be put to the subject officer without stating the identity of the disclose?
- If ‘yes’ - it is not essential under the principles of natural justice.
- If ‘no’ - a risk assessment on the likelihood of reprisal is required.
Agencies should keep a record of their decision, including information considered and reasons for the decision.
The following risk assessment guide may assist public sector entities to assess the risk of reprisal:
How can confidentiality be protected?
To protect confidential PID information agencies may:
- clearly explain confidentiality obligations in the entity’s PID procedure
- provide information and training to employees about confidentiality obligations, including obligations related to social media
- provide adequate training on confidentiality to officers who may be involved in managing PIDs
- limit the number of officers involved in the assessment and management of the PID
- as soon as possible advise the discloser of their obligations to maintain confidentiality, and whom they can discuss the PID with if needed
- advise witnesses interviewed about the PID of their obligations to maintain confidentiality
- advise the subject officer of their obligation to maintain confidentiality
- securely store records.
PIDs and RTI
Under Schedule 3 of the Right to Information Act 2009 ‘confidential information’ under s 65(1) of the PID Act is exempt from disclosure and should not be released.
Further information on the Right to Information Act 2009 is available on the Office of the Information Commissioner website.