Misconduct investigations: to disclose or not to disclose?


beware the inside threat

A recent paper raises the ugly spectre of misconduct investigations, with core privacy and public interest principles in opposition as to whether greater disclosure is preferable.

It might not be poetically Shakespearean, but the question of whether to disclose the outcome of Commonwealth public sector misconduct investigations is nevertheless a vexing one for decision-makers. As the Australian Public Service Commission’s recent discussion paper reveals, determining the appropriate extent of disclosure can often involve a formidable balancing act between strong competing principles.

At present, a 2008 APSC circular offers guidance for agencies on how to manage this dilemma. It notes that although “agencies can provide general information to complainants about the outcome of investigations”, “personal information about the employee who is subject to the investigation should only be provided where certain conditions are met”. While considerations such as the nature and seriousness of the misconduct will inform this decision, an employee’s identity should not be released “unless it is necessary, appropriate and reasonable to do so”.

Unfortunately, these somewhat nebulous guidelines have failed to provide sufficient clarity, such that the discussion paper identifies “a tendency across the APS to err on the side of non-disclosure”. As several decisions have indicated, this might be a habit that needs to be broken.

The recent case of Banerji v Bowles provides an apt example. Banerji made a complaint of bullying against a colleague. When she enquired what the outcome of her complaint was, her employer (the Department of Immigration and Citizenship, as it then was) told her that “appropriate action” had been taken. But the department refused to give any details about what the “appropriate action” was, saying that the Privacy Act prevented it from doing so. That led Justice Neville to quip dryly, “the letter is (a) less than informative (or otherwise illuminating), and (b) classic Yes, Minister speak”. He continued:

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