Purpose
To provide information about how to receive and deal with an appropriate disclosure of public interest information in accordance with the Public Interest Disclosure Act 2018 (SA) (the PID Act).
Scope
This procedure applies to employees of the Education Standards Board, deemed relevant authorities, as detailed below.
A disclosure of public interest information is made to a ‘relevant authority’ if it is made appropriately in accordance with Section 5(5) of the PID Act. Relevant authorities must comply with the PID Act and PID guidelines.
‘Public officers’ are defined in Schedule 1 of the Independent Commissioner Against Corruption Act 2012 (SA) (ICAC Act).
Responsible officer
Under Section 12(1) of the PID Act, as principal officer of the Education Standards Board, the Chief Executive must appoint responsible officers. Responsible officers are required to have completed training courses approved by the Independent Commissioner Against Corruption.
In accordance with Section 13 of the PID Act, the responsible officer must:
- receive appropriate disclosures of public interest information relating to the Education Standards Board and ensure compliance with the PID Act in relation to such disclosures; and
- make appropriate recommendations to the Chief Executive in relation to dealing with such disclosures; and
- provide advice to officers and employees of the Education Standards Board in relation to the administration of the PID Act.
Anyone who has received a disclosure of public interest information related to the Education Standards Board should seek the advice of the Education Standards Board responsible officer (ESB responsible officer) at any time throughout the process. In addition, information is also available on the ICAC or Office for Public Integrity (OPI) website.
Timeframes
You should notify informants of the action being taken (or the reasons for no action being taken) within 30 days after their disclosure is received.
You should also notify informants of the outcome of the action within 90 days after receiving their disclosure. However, if you or the ESB responsible officer form the view that it will take longer than 90 days to advise of the outcomes of the actions, then you must notify the informant in writing of this alternative longer period of time in which you will report to them.
It is the Chief Executive’s preference for notifications to be provided in writing. However, please ensure you liaise with the informant to agree on a preferred method of communication.
Disclosure to a journalist or member of parliament
In accordance with Section 6 of the PID Act, informants have certain rights if they have:
- made an appropriate disclosure of public interest information in accordance with Section 5; and
- made their identity known to the person to whom that appropriate disclosure was made (that is, they can contact you).
If the above applies, and if after 30 days or 90 days (or such other longer period specified in writing) and the informant has not been notified as required, they are entitled to receive the protections under the PID Act if they make an appropriate disclosure of the public interest information to a journalist or member of parliament (other than a Minister of the Crown, as Ministers of the Crown are already relevant authorities under the PID Act).
Under the PID Act, journalist means a person engaged in the profession or occupation of journalism in connection with the publication of information in a news medium.
Confidentiality
A person who makes an appropriate disclosure of public interest information is protected and their identity must be kept confidential in accordance with Section 8 of the PID Act.
PID Guideline three sets out some exceptions to maintaining confidentiality including in cases where it may be necessary to reveal the identity of an informant to prevent or minimise an imminent risk of serious physical injury or death to any person.
Under the PID Act it is a criminal offence to divulge the identity of an informant which carries a maximum penalty of $20,000 or imprisonment for 2 years, except in the limited circumstances where that is permitted.
If you receive an appropriate disclosure of public interest information, when seeking any advice, for example from OPI or from the ESB responsible officer, you must not disclose the identity of the informant unless the informant has consented.
You can only disclose the identity of the informant in accordance with PID Guideline three or if you have:
- assessed the disclosure; and
- based on that assessment, you are referring the appropriate disclosure of public interest information to OPI or to the ESB responsible officer for investigation; and
- based on that assessment, you have concluded that the matter cannot be fully investigated in the absence of the identity of the informant being disclosed; or
- you have received the informant’s approval to disclose their identity as required throughout the process.
Keeping the information safe
Any person who has received an appropriate disclosure of public interest information, must keep that information confidential.
The ESB responsible officer will have access to a secure mailbox through their email account. The mailbox will only be accessed by the ESB responsible officer and has appropriate ICT security measures in place.
The ESB responsible officer is directed to ensure matters are kept strictly confidential. For example, all printed materials are kept in a locked cupboard or drawer that only the ESB responsible officer can access and any conversations with an informant are to be held in private. In addition, the emails sent to and from the ESB responsible officer are kept secure and are not accessed by other staff members.
The Education Standards Board is committed to minimising any risk that an informant might be victimised as a consequence of making, or intending to make, a public interest disclosure.
Risk management
In accordance with the PID Act, risk management steps must be taken to assess and minimise:
- detrimental action against people because of public interest disclosures; and
- detriment to people against whom allegations are made in a disclosure.
ESB endeavours to mitigate these risks by:
- ensuring that at least one employee is designated as a responsible officer for the purposes of the PID Act and that the responsible officer has completed the approved training set out in the Public Interest Disclosure Regulations 2019 (see: 'Responsible officer')
- requiring all staff to undertake unconscious bias training every two years.
Public interest information and disclosures
There are two types of public interest information:
- environmental and health information
- public administration information.
Disclosures of environmental and health information
What is environmental and health information?
Environmental and health information means information that raises a potential issue of a substantial risk to the environment or to the health and safety of the public generally or a significant section of the public (whether occurring before or after the commencement of the PID Act).
Who can make a disclosure of environmental and health information?
Anyone can make a disclosure of environmental and health information.
However, to gain protections under the PID Act, a person who makes a disclosure of environmental and health information:
- must believe on reasonable grounds that the information is true; or
- not being in a position to form such a belief, believes on reasonable grounds that the information may be true and is of sufficient significance to justify its disclosure so that its truth may be investigated
A disclosure made to a relevant authority is referred to as an appropriate disclosure of environmental and health information for the purposes of the PID Act.
The Education Standards Board is not the most appropriate authority to receive disclosures of environmental and health information.
Disclosure of public administration information
What is public administration information?
Public administration information means information that raises a potential issue of corruption, misconduct or maladministration in public administration (whether occurring before or after the commencement of the PID Act).
The definitions of corruption, misconduct and maladministration in public administration are the same as those found in the ICAC Act and can be found in the appendices to PID Guidelines.
A disclosure of public administration information that is accompanied by such a suspicion is referred to as an appropriate disclosure of public administration information for the purposes of the PID Act.
Who can make a disclosure of public administration information?
While anyone can make a disclosure of public administration information, only public officers who make such a disclosure are eligible for the protections provided by the PID Act.
The term public officer is defined in Schedule 1 of the ICAC Act.
The most common categories of public officer can be found in the appendices to the PID Guidelines (see the PID guidelines).
Who can receive a disclosure of public administration information?
There are a number of relevant authorities that can receive disclosures relating to public administration information.
Whether a disclosure of public interest information is made to a relevant authority depends on the type of information being disclosed and what or who the information relates to.
Section 5(5) of the PID Act specifies the relevant authorities that can receive disclosure of public interest information.
- The list of relevant authorities is also included in the appendices to the PID guidelines.
Reporting appropriate disclosures to OPI
OPI must have oversight of all appropriate disclosures. In accordance with PID Guideline One, you (as the recipient of the disclosure) must notify OPI, even if no action is being taken, as soon as reasonably practicable after the receipt of the appropriate disclosure by making an electronic notification via the dedicated notification form on the ICAC website. Refer to PID Guideline One for more information about what information is to be included in the notification.
As the recipient of the disclosure you must retain the unique reference number issued by OPI after the making of a notification and must ensure that that unique reference number is provided to any other person or authority to whom the disclosure is referred.
PID Guideline Two applies in relation to the notification to OPI of the outcome of any action taken upon receipt of, or referral of, an appropriate disclosure of public interest information.
If you have received an appropriate disclosure of public interest information, or if you have received a referral of such a disclosure from someone else, you must notify OPI as soon as reasonably practicable via the online notification form. Refer to PID Guideline Two for more information about what information is to be included in the notification.
Procedure detail
The '5 essential gates'
Throughout the assessment process, in order to determine if the information received qualifies as an appropriate disclosure of public interest information in accordance with the PID Act, you must ask yourself the five questions below which act as the ‘5 essential gates’.
If the answer to each question does not qualify with the PID Act, then it cannot pass through to the next ‘gate’ and therefore the disclosure is not an appropriate disclosure under the PID Act.
- What is the content of the disclosure? (Refer to Sections 4, 5(3) & 5(4) of the PID Act.)
- Who can make the disclosure? A person or a public officer? (Refer to Sections 4, 5(3) & 5(4) of the PID Act.)
- To whom can the disclosure be made? Has it been made to a relevant authority? (Refer to Section 5(5) of the PID Act.)
If the information qualifies with the first 3 questions, then ask: - What are the protections available to the informant? (Refer to Section 5(1) of the PID Act.)
- What is the action to be taken in respect of an appropriate disclosure? (Refer to Section 7 of the PID Act.)
Step 1: Receiving a disclosure of information
When receiving the disclosure of information please speak to the informant about how they wish to be contacted by you. It is important that if the informant has provided their identity that they be kept informed as set out above, but that it is done in a way that maintains strict confidentiality (see 'Timeframes' and 'Confidentiality'). You can also ask them if they want to keep their identity confidential or if they give you consent to reveal their identity as needed throughout the process. If the informant gives you consent to reveal their identity as required throughout the process, ensure this is provided in writing.
Decide together how you will keep them informed. It is better they be kept informed in writing, although this is not a requirement of the PID Act.
Step 2: Assessment
You will need to determine if the information disclosed is an appropriate disclosure of public interest information. See 'Public interest information and disclosures'.
If you are a person to whom an appropriate disclosure of public interest information has been made:
1. If the content of the disclosure suggests that there is an imminent risk of serious physical injury or death to any person or the public generally, you (as the recipient of the disclosure) should immediately communicate such information as may be necessary to mitigate that risk to the most appropriate agency (e.g. South Australia Police, SafeWork SA, SA Ambulance, Environment Protection Authority).
2. If you (as the recipient of the disclosure) form a reasonable suspicion that the matter(s) of the subject of the disclosure involve(s) corruption in public administration, or serious or systemic misconduct or maladministration in public administration, you must comply with your reporting obligations under Section 20(3)(b) the ICAC Act and report the disclosure to OPI. See 'Reporting appropriate disclosures to OPI'.
3. If you (as the recipient of the disclosure) assesses the content of the disclosure as requiring further action, you must, unless the matter is reported to OPI as a potential issue of corruption in public administration, ensure that:
a) such action, as may be appropriate in the circumstances, is taken by you to ensure the matter the subject of the disclosure is properly addressed; or
b) such information as is necessary to enable action to be taken is communicated to the most appropriate person or relevant authority to take such action.
A person to whom an appropriate disclosure of public interest information is made, must assess the information as soon as practicable after the disclosure is made (see Section 7(1) of the PID Act).
For the purposes of the ICAC Act, misconduct or maladministration in public administration will be taken to be serious or systemic if the misconduct or maladministration:
- is of such a significant nature that it would undermine public confidence in the relevant public authority, or in public administration generally; and
- has significant implications for the relevant public authority or for public administration generally (rather than just for the individual public officer concerned).
Complaints or reports should be made to OPI if it is believed that a South Australian public officer has broken the law or acted in a way that is seriously inappropriate or negligent.
Assessed and no action is required
If the disclosure of information is not deemed as appropriate and the obligation to report under the ICAC Act does not arise, assess whether no action need be taken upon seeking the advice of the ESB responsible officer.
If the disclosure is deemed appropriate, no action need be taken if:
- the information disclosed does not justify the taking of further action; or
- the information disclosed relates to a matter that has already been investigated or acted upon by a relevant authority and there is no reason to re-examine the matter or there is other good reason why no action should be taken in respect of the matter (see Section 7(2)).
The appropriate disclosure will still need to be reported to OPI. See 'Reporting appropriate disclosures to OPI'.
Proceed to: Step 3: 'Notifying the informant'
Assessed and action is required
If the information does not give rise to a potential issue of public interest information, but warrants further action, you need to determine who best should take action in relation to it, having regard to the following criteria:
a) If investigation of the information may be warranted, who has the skills, resources and powers to investigate the matter?
b) If the information is substantiated following an investigation, what action would be appropriate? Who has the skills, resources and powers to take appropriate action in relation to the matter arising from the information, if the information is substantiated?
Having identified the appropriate person or authority to take action in relation to the matter raised by the informant, the information should be further assessed to determine what information should be communicated to that person or authority to enable the information to be properly addressed and maintain the informant’s confidentiality.
If action needs to be taken and you are not the correct person to action it, please refer the appropriate disclosure of public interest information to the ESB responsible officer or the appropriate person or relevant authority, unless good reasons exist for not doing so. For example, an appropriate disclosure of public interest information would not be referred to a line manager if the information related to them.
Following your assessment, when referring the appropriate disclosure of public interest information to the ESB responsible officer, other person or relevant authority, you can only disclose the identity of the informant if you have:
- assessed the disclosure; and
- based on that assessment, you are referring the appropriate disclosure of public interest information to the ESB responsible officer, other person or relevant authority for investigation; and
- based on that assessment, you conclude that the matter cannot be fully investigated in the absence of the identity of the informant being disclosed.
If you do not have enough information to draw that conclusion, please omit the informant’s identity from your referral. If the ESB responsible officer, other person or relevant authority considers that they need the informant’s identity to properly investigate, they will tell you.
Even if you refer the appropriate disclosure of public interest information, you must still:
- take action in relation to the information in accordance with PID Guideline One set out below (as required by Section 7(1)(a)); and
- provide OPI with information relating to the disclosure in accordance with the PID Guideline One (as required by Section 7(1)(c)). See: Reporting appropriate disclosures to OPI.
If you don’t refer the matter, you must take the appropriate action as decided through the assessment of the information and notify OPI of the action taken. See 'Reporting appropriate disclosures to OPI'.
Proceed to: 'Step 3: Notifying the informant'
Step 3: Notifying the informant
Notification of no action required
If no action is being taken, as the person to whom the appropriate disclosure of public interest information was made, you still need to comply with Section 7(1)(b).
Within the specified timeframes (See 'Timeframes'), you must take reasonable steps to notify the informant (if the informant's identity is known):
- that their disclosure has been received;
- that an assessment of the information has been made;
- that no action is being taken in relation to the information; and
- the reasons why no action is being taken in relation to the information.
Notification of action to be taken
If action is being taken, as the person to whom the appropriate disclosure of public interest information was made, you need to comply with Section 7(1)(b).
Within the specified timeframes (See 'Timeframes'), you must take reasonable steps to notify the informant (if the informant's identity is known):
- that their disclosure has been received;
- that an assessment of the information has been made; and
- advise of the action being taken in relation to the information.
Notification of the action outcome
If you took action in relation to an informant’s appropriate disclosure of information, you must take reasonable steps to notify them (if the informant's identity is known) of the outcome of that action (see Section 7(3)(a) of the PID Act) within the specified timeframes (See 'Timeframes').
If you referred the appropriate disclosure of public interest information to another relevant authority, then the person the disclosure was referred to must take reasonable steps to notify the informant (if the informant's identity is known) of the outcome of that action (see Section 7(3)(a) of the PID Act).
If you take action in relation to an appropriate disclosure of public interest information, you must provide OPI with information relating to the outcome. See 'Reporting appropriate disclosures to OPI'.
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