Whistleblower Protection vs. Government Confidentiality

Address by André Marin, Ombudsman of Ontario, to the International Conference of Ombudsmen, in Willemstad, Curaçao

June 16, 2011

Mr. President, Governor General, Madame Ombudsman, distinguished guests: I was delighted when Alba invited me here to speak, and intrigued by the topic she asked me to address this evening: The protection of the whistleblower versus the importance of the government’s duty of confidentiality.

In my mind, it raised two immediate questions: The first question is to what extent should we protect whistleblowers. The second is what, exactly, is the government’s duty of confidentiality.

I am going to begin by addressing the second question because I believe the answer to that question goes a long way towards answering the first.

My view – which might be considered heretical in some circles – is that in this day and age, government should not have a duty of confidentiality, except in very limited circumstances.

I believe that in 2011, democratic governance has evolved to the point where the primary obligation on government should not be to shield information from the public, but just the opposite.

Government today should have a positive duty to be as open, and transparent as possible.  Government should proactively disclose information and seek out new and innovative ways of making it more accessible.  Exceptions to the principle of openness should be few, narrowly confined, and clearly justified as necessary to satisfy a significant and specific interest in maintaining confidentiality.

Granted, this is a radical departure from the way governments have traditionally functioned.  Historically, governments have operated behind closed doors.  They have hidden behind principles of public interest immunity.  Their default position has been to protect government documents from disclosure.  And oaths of secrecy have bound public servants and compelled their silence.

I suspect that many of you have come across government officials who continue to operate in a culture of containment, control and concealment.  I know at my Office, we certainly have encountered these throwbacks to the days of the Star Chamber – where justice was meted out in secret.

But there is good news. The shroud of secrecy that once prevailed over Government information has been eroding over time.  The civil and criminal law have advanced so that now governments are often subject to the same legal disclosure requirements as other litigants.  Access to information legislation has taken root.

Sweden not only gave us the world’s first Ombudsman, it also created the first freedom of information legislation in 1766.  It took a couple of centuries for this to catch on, but now access to information laws are common throughout the world.

In Canada, our federal access legislation came into effect in 1983.  Unfortunately, the Canadian experience has shown that this legislation can be cumbersome, limited in scope and often easily thwarted.  This is partly because the nature of access legislation is to be reactive.  Any new developments tend to be in response to individual complaints.

Some information watchdogs have made progress in persuading governments to adopt more proactive access practices.  But generally, our information statutes still tend to allow for multiple loopholes, and opportunities for governments to dispute and delay access to information.

Meanwhile, in today’s era of instant communication, the public expectations of how open government should be have exploded.  Whether bureaucrats like it or not, the concept of open government is sweeping the planet and becoming synonymous with democracy and good governance.

Why is the concept of “open government” so compelling?  Openness facilitates accountability; secrecy defeats it.  Knowledge is power.  Those who have it can hide.  Those who lose control of it cannot hide.  If facts are known, decisions and actions can be judged and actors can be called to account.  Openness therefore advances moral and ethical government. It also promotes honesty and enables the rule of law to apply.

Of course, not every government institution has quite come to terms with that yet.  Some bureaucrats sit with their finger in the dike, trying to protect information that they feel the public should not see.  But the dike will inevitably break, sooner or later.

The days when governments could control the message and choose how to manage public information are going fast.  Social media like Twitter allow the public to disseminate information faster than the public can control it.  In Canada’s recent federal election last month, the election laws forbade anyone from reporting vote results in the eastern part of the country before the polls in the west had closed.  But on Twitter, thousands of people got around those laws by writing creative tweets.  Look at Wikileaks.  Its very existence is a dramatic demonstration of the futility of trying to control information.  But government still tries, often with tremendous tenacity.

Last spring, for example, the government of my province, Ontario, enacted a secret regulation for the G20 summit, under a little-known statute from World War II, which gave police extraordinary powers of detention, search and arrest.

The government deliberately failed to notify the public or stakeholders about this regulation before it passed it behind closed doors.  Even after that, when the entire downtown of Toronto was being fenced off to secure the area where the world leaders would be meeting, nothing was said to the public about the new powers conferred on police.

Government administrators knew that it would not sit well with the public that the police had been given the power to administer martial law during the summit.  So they said nothing.  And more than 1,000 people were arrested in the streets of Toronto during the summit weekend – with countless more detained and searched under the secret law.  Many of them were simply innocent bystanders who had nothing to do with protesting the G20 – they were just in the wrong place at the wrong time.  As I said when I released the report on my investigation, it was the most massive violation of civil liberties in modern Canadian history.

I have no doubt that if the secret regulation had been openly debated, it would never have seen the light of day.  Its legality would have been loudly questioned, and the government would have balked.

Instead, it chose the path of secrecy – and this is just one of several sad failures of government agencies to be open and transparent that I will be describing in my Annual Report when it is released next week.

I should stress, though, that even my Office used to hide behind a veil of secrecy, not so long ago.  Before my time, the Ontario Ombudsman’s Office conducted the bulk of its business behind closed doors, working out backroom deals.  It only issued one report a year and would not even confirm or deny the existence of any given complaint.

Since 2005, we have completely changed that approach.  We announce our major investigations and update the public on their progress.  We report the results of major investigations, complete with detailed accounts from complainants, witnesses, and officials.  We feature people who have stories to tell about being harmed by government maladministration, and with their consent, use their names to put a human face on our reports.  We have found that most people want their stories told, and many have attended my press conferences to support my reports.

Of course, I recognize that there are instances when there are legitimate reasons for government to protect information from disclosure.  In my view, these circumstances should be rare, and confined to cases where there is an overriding countervailing interest that needs to be protected.

For instance, confidentiality may be necessary where a genuine national security interest exists.  Or if disclosure of information might put someone in physical danger, reveal sensitive private personal or financial information, or compromise an ongoing investigation, confidentiality might well be justified.

But using this approach, in the vast majority of cases, information would still not be protected from disclosure.  And let’s be clear, the fact that information might embarrass government – for example, in cases of ill-advised conduct or spending – should never be seen as a legitimate reason for keeping it secret.

There is a huge volume of information in the hands of government that the public would likely find useful, if it was rendered easily accessible.  Slowly but surely, governments are starting to grasp this.  Some jurisdictions have even mandated that government bodies routinely post data sets online to further the vision of open government.

So where do whistleblowers fit in?

Whistleblowing is generally consistent with the principles of open government and the public interest.  In fact, they have served as a major catalyst in the drive towards openness and transparency.

From Enron to the FBI to a legion of other organizations, we have seen courageous individuals come forward to expose malfeasance or maladministration, often knowing full well that they were sacrificing their careers or even their liberty.

In my own work as the Ontario Ombudsman, whistleblowers have served as a source of crucial information in many of the major systemic investigations we have conducted.

For example, our investigation of the Municipal Property Assessment Corporation, a government agency responsible for evaluating more than 4 million properties in Ontario for tax purposes, was kick-started by information from someone inside the system who approached us with information that led us to dig deeper.

This agency claimed to be the world leader in its field, with foolproof systems in place to ensure that their property assessments were unfailingly accurate.  But as we investigated, more of MPAC’s own staff came forward with evidence, including damning internal documents, demonstrating that its systems were flawed and unfair – and MPAC knew it.

The result?  A scathing report and a two-year moratorium on property taxes in Ontario to fix the system.

In another case, whistleblowers within the Ontario lottery system provided us with inside information that helped us reveal the scams used by lottery ticket retailers to cheat customers out of millions of dollars in prizes.

Now, did any of these insiders who approached us from various agencies break oaths of secrecy?  Possibly.  Did they give us damning documents that would likely not otherwise have seen the light of day?  Almost certainly.  Should they be punished for that?  Or praised and protected?  I think the answer is obvious.

That said, there are limits to the protections that are available to whistleblowers.  In Ontario, my Office is not bound by the provincial whistleblowing statute, so whistleblowers can come to us at any time for any reason, and I will endeavor to protect their confidentiality under my Act.

But most whistleblowing legislation contains language that circumscribes the situations when civil servants can blow the whistle.  For example, it might say disclosure is permitted where legislation has been breached, or there is evidence of gross mismanagement, waste, fraud or corruption. But not every disclosure is necessarily protected.

And there will always be those who accuse the whistleblowers of being disloyal or self-serving – or doing more harm than good.  For example, when I was Canada’s military ombudsman in 1999, several members of the military literally broke ranks to expose some significant injustices.  But the response by the military brass tended to be “blame the messenger; investigate the complainant.”  One senior officer even complained publicly, at a defence ethics conference, no less, that: “…immoral whistleblowers can focus public attention on relatively trivial matters and cause Defense staff to fritter away their time inquiring, investigating and responding to such issues at the expense of much greater problems being faced by the military.”

In my experience, it is not uncommon for officials in damage control mode to react this way and label the whistleblower as vexatious or frivolous.  To be sure, some malicious whistleblowers do attempt to settle personal scores through disclosing sensitive information.  But in my experience, they are very few and far between.

Most whistleblowers are not malicious, they are terrified – with good reason.  You will not know until you have gathered and assessed actual evidence which type of whistleblower you are dealing with.  Besides, even if a whistleblower has an agenda, or is generally unsavoury, that doesn’t necessarily mean he or she is wrong.

So, the clear conclusion is that it benefits us all to have strong, effective, efficient mechanisms in place, to encourage whistleblowers to come forward and to protect them when they do.  How effective such legislation has actually proven to be will no doubt be a matter for debate during this conference, and I look forward to it.

Finally, let me offer my thanks to the Ombudsman of Curacao and her team for taking the time and making the effort to organize and host such a wonderful conference.  The topic could not be more timely.



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