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Some notes about defining whistleblowing

by Simon Longstaff

A whistleblower discloses information he or she reasonably believes evidences a violation of any law, rule, or regulation, or mismanagement, a gross waste of public funds, an abuse of authority, or a substantial or specific danger to public health or safety.

1. a disclosure of information evidencing objectionable misconduct, not otherwise known or visible;
2. such disclosure is made in the reasonable belief that this information demonstrates that there had been such misconduct;
3. the person making the disclosure acts in good faith, without malice;
4. the disclosure is made in the public interest with a view to ensuring that the community has an effective civil service; and
5. the disclosure is not specifically prohibited by law, or considerations of national security or defence would not preclude it being made.

(Starke, 1991, p.210)

Common features to any definition

• the whistleblower: a current or past employee of an organisation who makes accusations against that organisation;
• the recipient of the complaint: commonly some external body (such as the media, Parliament, or a public enquiry) but sometimes also an internal recipient (such as a more senior officer, or a special internal office created to receive such complaints);
• the complaint: normally that an organisation has practised, tolerated or bears responsibility for some illegal, immoral or unethical conduct which is likely to result in unnecessary harm to third parties; and
• the circumstances of the disclosure: which usually occurs in a way whereby the whistleblower (either intentionally or accidentally) is identified publicly with the complaint, and claims that the principle motive for the disclosure was to advance the public interest.

(McMillan, 1988, p.119)

Some tentative conclusions concerning the general shape of an adequate and effective reporting structure:

• The aims of the structure should be made explicit. If the objectives are properly understood and endorsed then there will be a much better chance of achieving the desired end,
• The structure should resemble other networks within the organisation. This will help to encourage a sense that reporting serious wrongdoing is a normal part of the organisation's culture,
• Whilst it may be desirable to have internal lines of communication, it is very important that there be an individual or unit whose chief (if not sole) responsibility is to handle the relevant reports. An adequate network must be headed by a person who has sufficient seniority to ensure that reports will be dealt with in an appropriate manner. Whistleblowers must have confidence in the internal system. Such confidence can easily be undermined if there is a perception that the responsible entity is subject to any form of 'operational' conflict of interest. This can happen when cost restraints mean that the responsible entity is required to fulfil a number of other duties which involve a blurring of lines of responsibility and so on,
• Given the difficulty of establishing entirely dependable lines of communication, it may be wise to sanction the use of external lines in circumstances where there are sufficient grounds for believing that the internal structure is inadequate.

The range of interests to be considered

1. The interests of the person or persons impugned in the report or complaint.
2. The interests of the reporter. Except where the reporter is a senior/supervising officer performing a duty to export the misconduct of subordinates,

it is desirable that the anonymity of the reporter be maintained until that point is reached in consequential investigation where revelation of the reporter's identity is necessary (if at all) so as to accord due process to 'the accused'.

1. The interests of the agency. Here there is a need to minimise the disruption occasioned by the report.
2. The interests of the public

(Starke, 1991, p.256)

One example of private enterprise provisions

Each employee shall be alert to any action or omission in connection with his or her work which might constitute a violation of this Code, shall attempt to prevent Code violations and shall take prompt corrective action necessary to remedy and prevent any recurring violation of this Code. Where personal corrective action is not possible or practicable, the employee should immediately bring the matter to the attention of his or her supervisor, the functional Executive Director or the Managing Director.

It goes on:

Any failure by an employee to report a Code violation in accordance with this Code section shall itself constitute a Code violation.

(Coca-Cola Amatil, 1991, pp 20 & 22)

Reacting to reports of wrongdoing

• the response will be objective,
• any investigation will be thorough while seeking to minimise delay in the resolution of the matter,
• where possible, procedures employed will be non-coercive and non-threatening.

There are bound to be other factors that could be drawn from the discussion so far. To the extent that any other matter should be considered, it will owe its place in the discussion to the fact that it contributes to the achievement of a just solution. That is, to a solution that is fair to all concerned.

'Muckrakers': rarely have ties to the organisation being criticised

'Stool pigeons': have self-interest as the primary motivation for disclosing information

'Whistleblowers': usually refers to people who disclose moral wrongdoing for moral reasons

Types of retaliation

• dismissal (usual in private sector)
• damaging letters of 'recommendation'
• blacklisting
• transfers, demotions, denial of salary increases and/or promotions
• questions re. competence, motivation, mental health etc.

Some advice for whistleblowers

• Make sure that the situation is one that warrants whistleblowing
• Examine your motives
• Verify and document information
• Determine the type of wrongdoing and to whom it should be reported
• State allegations in an appropriate way
• Stick to the facts
• Internal or external?
• Open or anonymous?
• Resign first?
• What protection is available?
• Anticipate and document retaliation

(adapted from James, 1984)

Internal reporting

• Establish clear channels
• Use of channels should be rewarded as an act of loyalty
• Ombudsman or independent committee to hear complaints
• The model advocate

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