Request for information about employment investigations involving social workers
Section 9(2)(ba)(ii) OIA applied—implied obligation of confidence in employment context—release would be likely to damage the public interest in maintaining good working relationships between the Department and its staff—public interest in accountability required release of expanded summary
A requester asked the Department of Child, Youth and Family Services for disciplinary files in relation to two social workers. The Department disclosed summary information, but withheld the files under section 9(2)(ba)(ii) of the Official Information Act (OIA). The requester complained to the Ombudsman.
The Ombudsman requested a copy of the files at issue and an explanation of the reasons for withholding.
The Department maintained that the files should be withheld under section 9(2)(ba)(ii) of the OIA, and explained as follows:
The Department understands it has an obligation to its staff to be a good and fair employer. Part of this responsibility includes the Department instilling confidence in its staff that employee/employer issues will be treated fairly, reasonably, in confidence, and in accordance with the principles of natural justice.
The Department believes that the employment relationship, based on obligations of confidence, extends to staff disciplinary matters. Employees have an expectation that confidentiality will be maintained whilst any disciplinary issues are resolved. Generally, the Department maintains this confidence with regard to staff disciplinary issues.
Section 9(2)(ba)(ii) of the OIA applies when releasing information that is ‘subject to an obligation of confidence’ would be likely to ‘damage the public interest’.
The Ombudsman accepted that there is an implied obligation of confidence in the employment context. The two staff members would have had an expectation that matters relating to disciplinary issues would remain confidential between themselves and their employer.
There was also an implied obligation of confidence in respect of information provided by other individuals about the allegations made against the staff members.
The Ombudsman considered that disclosure of the files would be likely to prejudice the ongoing employer/employee relationship between the Department and its staff, in that staff would lose confidence that such allegations would be addressed fairly and in a private manner, and this would be likely to damage the public interest.
The Ombudsman therefore considered that section 9(2)(ba)(ii) of the OIA applied.
Section 9(2)(ba)(ii) is subject to a public interest test. This means the need to withhold must be balanced against the countervailing public interest in release. If the countervailing public interest weighs more heavily, the information must be released. If not, it can be withheld.
The Ombudsman considered that there were public interest considerations favouring disclosure of certain information in this case.
Social workers interact with many vulnerable members of society. There is a public interest in ensuring that any allegations of impropriety or inappropriate behaviour are investigated fully and, where allegations are substantiated, appropriate action is taken.
Where allegations have been substantiated and some form of disciplinary action has been taken, there is a strong public interest in the disclosure of information describing, in general terms, the nature of the allegations and the nature of the disciplinary action taken, to promote the transparency of the investigation process and the accountability of the Department.
After considering the Ombudsman’s views, the Department agreed to disclose an expanded summary, which included a brief description of the allegations involved, and the outcome of the disciplinary process.
This case note is published under the authority of the Ombudsmen Rules 1989. It sets out an Ombudsman’s view on the facts of a particular case. It should not be taken as establishing any legal precedent that would bind an Ombudsman in future.