Our work begins well before an investigation starts. Analyzing and responding to complaints requires significant time and attention and is an important function of our office. Every complaint is analyzed to determine if our office has legal jurisdiction to initiate a formal investigation, and we provide sound advice on what steps the complainant should take. Analysis of complaints generally involves four parts:
IDENTIFYING THE ISSUES
Complaints can involve a number of diverse and complex issues and are often accompanied by substantial amounts of supporting documentation.
Our initial step is to conduct a thorough analysis of the complaint and supporting documentation to determine the specific issues the complainant has. This also involves speaking with the complainant and meeting with them in person when possible.
LEARNING THE BUSINESS
There are approximately 285 public entities which currently fall under the Public Interest Disclosure (Whistleblower Protection) Act, all having multiple departments, branches and business units operating within.
Each public entity has policies, procedures and directives, and distinct governance models. Learning about how the business unit or individual employee functions is a significant component of our analysis. This will often involve requesting documentation from public entities and speaking with employees and executives within the organization.
Issues are often resolved at this point as the complaints can be determined to stem from, for example, a general misunderstanding regarding a valid business process.
For the Commissioner to have legal jurisdiction to initiate a formal investigation, certain criteria must be met. The issues must, on a prima facie basis, relate a wrongdoing specifically defined in the Act; the individuals or entities subject of the complaint must be a public entity to which the Act applies; the complaint must appear to be made in good faith; the complainant must have a valid reason, as defined in the Act, to by-pass their Designated Officer and make their complaint directly to the Commissioner.
Often, complaints are referred back to the public entity as the Act requires disclosures initially be made to Designated Officers. This step often involves detailed statutory analysis which may include a legal review by our internal counsel.
If a complaint meets the jurisdictional elements of a disclosure of wrongdoing, the Commissioner may initiate a formal investigation; however, in cases where complaints are found to be non-jurisdictional, it is imperative to satisfactorily explain to the complainant why our office does not have jurisdiction and to provide advice on what other action, if any, the complainant may consider taking. This often involves further research to determine the most appropriate authority for the complainant to address their issues.
Our office analyzed 63 complaints during the 2015-16 fiscal year. The analysis of these complaints required a substantial time commitment and supplemented available time investigative staff had while not conducting ongoing investigations into disclosures of wrongdoing and providing awareness presentations.