Whistleblowing and leaking aren’t the same thing

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This article was published 24/06/2021 (1744 days ago), so information in it may no longer be current.

OFTEN, in political debates and in the media, the terms “whistleblowing” and “leaking” are used loosely and interchangeably to describe revelations about alleged policy blunders, legal or ethical misconduct and serious mismanagement within government departments and other public bodies.

This is inappropriate and unfortunate. The two activities are similar, but the motivations of the whistleblower and the leaker often differ, as do the steps they follow in disclosing what they perceive to be serious wrongdoing, and the range of potential consequences for themselves and the organizations involved.

Exposure of wrongdoing has existed since governments were first founded. The ancient Greeks had a phrase, “fearless speech,” to describe the phenomenon. However, whistleblower protection laws are a recent phenomenon. In 1978 there were no whistleblower protection laws; today 48 countries have such laws.

The government of Canada (2007) and all provincial governments, led by Manitoba (2007), have adopted such laws. Prior to these laws, public employees were required, as a condition of employment, to protect sensitive information and to exhibit loyalty to their employer by not exposing internal problems.

Whistleblowing involves the “good faith” disclosure of serious wrongdoing through authorized procedures which create an entitlement to protection against retaliation. In contrast, leaking involves the intentional and illegal disclosure of classified information without authorization.

Ministers and senior public servants claim leaks do serious harm to the quality of debate and decision-making in cabinet, as well as undermining ministers’ confidence in the public service and its loyalty to the government of the day. There are laws, internal procedures, informal norms and sanctions, including court proceedings, meant to deter and deal with leaking.

Defenders of leaking, often in the media, insist that it can disclose issues that governments would prefer to conceal. They argue that when there is illegality, dishonesty, gross mismanagement or irreversible harm involved, leaking serves the public interest. Recent increases in leaking reflect multiple factors, including a lack of confidence among public employees in the whistleblower protection laws.

A 2021 comparative study of multiple countries, conducted by the U.S. Government Accountability Project, found that most laws are written narrowly to discourage external disclosure and do not provide adequate protection against retaliation.

Manitoba’s experience with the 2007 Public Interest Disclosure Act (PIDA) mirrors these international findings. The provisions of PIDA are crucially important, but too detailed to be described here, so only some general points can be made.

As amended over the years, PIDA now covers departments, Crown corporations, health authorities, child agencies, personal care homes, school divisions, universities and municipalities identified by regulation.

With this many public bodies covered, one might expect a high volume of cases. In the first six years, there was only a trickle of cases, mainly because awareness of the law was limited. Also, PIDA encourages employees to first raise concerns within their “home” organizations. In a relatively small public sector, internal disclosure is risky because anonymity and protection against reprisal are difficult to ensure.

A review of the first decade of PIDA reported that 155 complaints of wrongdoing reached the ombudsman office, only 24 cases were investigated and there were only three findings of actual wrongdoing. Even by 2019, with many more bodies covered, there were only 35 disclosures made to the ombudsman office, only five investigations were opened and there was only one confirmed case of wrongdoing.

It must be noted that the published totals of cases do not include disclosures that were made and resolved within public bodies.

In 2018, several significant amendments were made to the law. Arising from a lawsuit the previous year, greater protection of the identity of whistleblowers was provided. Municipalities are to be brought under PIDA on a gradual basis through provincial regulation. And finally, the ombudsman was authorized to investigate complaints about reprisals — complaints that previously went to the Manitoba Labour Board.

From 2009 to 2018, the board had received only nine reprisal complaints, and all were either dismissed or withdrawn. In 2019, the ombudsman dealt with nine complaints and dismissed seven without further action. The figures suggest actual reprisals are rare, or they may be subtle and indirect, making them difficult to prove.

In January 2020, an editorial in this newspaper reported on the severe damage to the professional careers and personal lives of three whistleblowers who worked in the health-care system for three different institutions. The editorial concluded rightly that PIDA needed to be amended to provide more protection. There are limits, however, what can be accomplished with legal reforms.

For PIDA to work as intended, there must also be top-level leadership commitment to its aims. In turn, those leaders must promote cultures that encourage responsible, good-faith whistleblowing rather than dangerous leaking.

Paul G. Thomas is professor emeritus of political studies at the University of Manitoba.