10. How we will deal with voluntary PIDs

10.1  How we will acknowledge that we have received a report and keep the person who made it informed

When a disclosure officer in DCS or an agency for whom DCS provides functions under the PID Act receives a report which is a voluntary PID, or looks like it may be a voluntary PID, the person who made the report will receive the following information:

• You will receive an acknowledgment that the report has been received. This acknowledgement will:
  • state that the report will be assessed to identify whether it is a PID
  • state that the PID Act applies to how DCS deals with the report
  • provide clear information on how you can access this PID policy
  • provide you with details of a contact person and available supports.
• If the report is a voluntary PID, we will inform you as soon as possible how we intend to deal with the report. This may include:
  • that we are investigating the serious wrongdoing
  • that we will refer the report to a different agency (if appropriate) to deal with the voluntary PID. If we do this, we will provide you with details of this referral
  • if we decide to not investigate the report and to not refer it to another agency for it to be investigated, we will tell you about the reasons for this decision. We will also notify the NSW Ombudsman of this decision.
• If we decide to investigate the serious wrongdoing, we will provide you with updates on the investigation at least every three months. During this time, if you would like more frequent updates, you should contact the contact person who was nominated when you made the report.
  • if we investigate the serious wrongdoing, we will provide you with the following information once the investigation is complete:
    • a description of the results of the investigation — that is, we will tell you whether we found that serious wrongdoing took place.
    • information about any corrective action as a result of the investigation/s — this means we will tell you what action we took in relation to the person who engaged in the serious wrongdoing or if the serious wrongdoing was by our agency, what we have put in place to address that serious wrongdoing
  • Corrective action could include taking disciplinary action against someone or changing the practices, policies and procedures that we have in place which led to the serious wrongdoing.
• There may be some details about both the findings made because of the investigation and the corrective action taken that cannot be revealed to you. We will always balance the right of a person who makes a report to know the outcome of that report, with other legal obligations we have.
• If you have made an anonymous report, in many cases we may not be able to provide this information to you.

10.2  How we will assess a voluntary PID

Once a report that may be a voluntary PID is received by a disclosure officer and forwarded to Secretary of DCS or their delegate an assessment is undertaken to identify whether the report is a voluntary PID or another type of disclosure.
 
All PID assessments are strictly confidential, and the assessment is completed by DCS Investigations Team. If it is a voluntary PID, we will ensure that we comply with the requirements in the PID Act, if not other relevant policies will be complied with. You will be advised the result of the assessment.

a)  Report not a voluntary PID

Even if the report is not a voluntary PID, it will still need to be dealt with in a manner consistent with our relevant policies and procedures or through an alternate process.

If the report is not a voluntary PID, we will let you know that the PID Act does not apply to the report and how we will deal with the concerns raised in the report.

If you are not happy with this assessment or otherwise disagree with it, you can raise it with the person who has communicated the outcome with you or request an internal review by a person not involved in making the decision or request that the matter be conciliated. DCS can, but do not have to, request the NSW Ombudsman to conciliate the matter. (See the section Review and dispute resolution.)

b)  Cease dealing with report as voluntary PID

DCS may stop dealing with a voluntary PID because it is not actually a voluntary PID (meaning it does not have all the features of a PID as set out in the section of this policy When will a report be a PID?)

Your contact person or the investigator of the matter will provide you, the PID reporter, the reasons why the agency has ceased dealing with the report as a voluntary PID. They will also provide you with information of regarding any other action which may be proposed. You may request a review of this decision (see the section below Review and dispute resolution).

Importantly, the determination to stop dealing with a voluntary PID as a voluntary PID matter does not mean the concerns raised will not be addressed and though not protected by the PID Act, DCS and its agencies will not tolerate any detrimental action taken against you for raising concerns in good faith.

c)  Where the report is a voluntary PID

If the report is a voluntary PID:

• In most cases we will investigate to make findings about whether the serious wrongdoing disclosed in the report occurred, who was involved, who was responsible, and whether the people involved, or the agency engaged, in serious wrongdoing. There may be circumstances where we believe an investigation is not warranted — for example, if the conduct has previously been investigated.
• DCS may refer investigation matters to external organisations for investigation. If this will be the case in relation to your voluntary PID you will be advised of this and provided contact officer within DCS.
• There may also be circumstances where we decide that the report should be referred to another agency, such as an integrity agency. For example, reports concerning possible corrupt conduct may be required to be reported to the ICAC in accordance with section 11 of the Independent Commission Against Corruption Act 1988.
• Before referring a matter, we will discuss the referral with the other agency, and we will provide you with details of the referral and a contact person within the other agency.
• If we decide not to investigate a report and to not refer the matter to another agency, we must let you know the reasons for this and notify the NSW Ombudsman.

10.3  How we will protect the confidentiality of the reporter of a voluntary PID 

We understand that people who make voluntary PIDs may want their identity and the fact that they have made a report to be confidential.

Under the PID Act, information tending to identify a person as the reporter of a voluntary PID (known as identifying information) is not to be disclosed by a public official or an agency.

There are certain circumstances under the PID Act that allow for the disclosure of identifying information. These include:

• where the person consents in writing to the disclosure
• where it is generally known that the person is the reporter of the voluntary PID because of their voluntary self-identification as the reporter
• when the public official or DCS reasonably considers it necessary to disclose the information to protect a person from detriment
• where it is necessary the information be disclosed to a person whose interests are affected by the disclosure
• where the information has previously been lawfully published
• when the information is disclosed to a medical practitioner or psychologist for the purposes of providing medical or psychiatric care, treatment or counselling to the individual disclosing the information
• when the information is disclosed for the purposes of proceedings before a court or tribunal
• when the disclosure of the information is necessary to deal with the disclosure effectively
• if it is otherwise in the public interest to disclose the identifying information.

We will not disclose identifying information unless it is necessary and authorised under the PID Act.

We will put in place steps to keep the identifying information of the reporter and the fact that a report has been made confidential. It may not be possible for us to maintain complete confidentiality while we progress the investigation, but we will do all that we practically can to not unnecessarily disclose information from which the reporter of the report can be identified.

We will do this by:

• we will limit the number of people who are aware of the PID reporter’s identity or information which could identify the reporter
• if we must disclose information that may identify the person reporting the PID we will still not disclose the actual identity of the reporter of the PID, unless the circumstances of the disclosure require us to do so.
• we will ensure that any person who does know the identity of the reporter of the PID is aware of the importance of maintaining confidentiality
• we will ensure that only authorised persons have access to emails, files or other documentation that contain information about the identity of the reporter
• we will undertake a risk assessment to determine if anyone is aware of the reporter’s identity and if those persons have a motive to cause detrimental action to be taken against the reporter or impede the progress of the investigation
• we will provide information to the reporter of the PID about the importance of maintaining confidentiality and advising them how best to protect their identity, for example, by telling them not to discuss their report with other staff.

If confidentiality cannot be maintained or is unlikely to be maintained, DCS will:

• advise the person whose identity may become known
• update the risk assessment and risk management plan for the PID
• implement strategies to minimise the risk of detrimental action
• provide additional supports to the person who has made the PID as required
•  remind persons who become aware of the identifying information of the consequences for failing to maintain confidentiality and that engaging in detrimental action is a criminal offence and may also be a disciplinary matter
• on rare occasions such as criminal offences and/or public safety concerns DCS may be required to reveal details of the PID reporter to an investigative agency. In these instances, the PID reporter will be advised this has occurred and if appropriate who the information was provided to.

10.4  How we will assess and minimise the risk of detrimental action

DCS will not tolerate any detrimental action being taken by any person against a person who has made a PID, investigators, witnesses or the person the report is about.

DCS will assess and take steps to mitigate detrimental action from being taken against the reporter of a voluntary PID, the person whose conduct is the subject of a PID, investigators and witnesses.

DCS will take steps to assess and minimise the risk of detrimental action by:

• a risk assessment will be undertaken, and a risk management plan will be created (including reassessing the risk throughout the entirety of the matter)
• details of the unit and role that will be responsible for undertaking a risk assessment will be recorded and provided
• explain the approvals for risk assessment and the risk management plan, that is, rank and role of the person who has final approval
• consult with the PID reporter to identify risks
• you will be provided a list of the protections offered in the risk management plan which will also outline what supports will be provided.

Detrimental action against a person is an act or omission that causes, comprises, involves or encourages detriment to a person or a threat of detriment to a person (whether express or implied). Detriment to a person includes:

• injury, damage or loss
• property damage
• reputational damage
• intimidation, bullying or harassment
• unfavourable treatment in relation to another person’s job
• discrimination, prejudice or adverse treatment
• disciplinary proceedings or disciplinary action, or
• any other type of disadvantage.

Detrimental action does not include:

• lawful action taken by a person or body to investigate serious wrongdoing or other misconduct
• the lawful reporting or publication of a finding of serious wrongdoing or other misconduct
• the lawful making of adverse comment, resulting from investigative action
• the prosecution of a person for a criminal offence
• reasonable management action taken by someone in relation to a person who made or may make a PID. For example, a reasonable appraisal of a PID reporter’s work performance.

10.5  How we will deal with allegations of a detrimental action offence

If DCS become(s) aware of an allegation that a detrimental action offence has occurred or may occur, DCS will:

• take all steps possible to stop the action and protect the person(s)
• take appropriate disciplinary action against anyone that has taken detrimental action
• refer any evidence of a detrimental action offence to the Commissioner of Police and the ICAC or the Law Enforcement Conduct Commission (whichever is applicable)
• notify the NSW Ombudsman about the allegation of a detrimental action offence being committed.

10.6  What will we do if an investigation finds that serious wrongdoing has occurred

If, after an investigation, it is found that serious wrongdoing or other misconduct has occurred, DCS will take the most appropriate action to address that wrongdoing or misconduct. This is also known as corrective action.

Corrective action can include:

• a formal apology
• improving internal policies to adequately prevent and respond to similar instances of wrongdoing
• providing additional education and training to staff where required
• taking employment action against persons involved in the wrongdoing (such as termination of employment, relocation, a caution or reprimand)
• payment of compensation to people who have been affected by serious wrongdoing or other misconduct.