The recent series of unauthorised disclosures of highly sensitive government records, notably from the United States, has dramatically increased both the public and political consciousness of the 'whistleblower' and the role of 'whistleblowing' in the promotion of transparent and accountable public administration. The cinematic portrayal of the Watergate affair, and Richard Nixon's consequent resignation, deified the 'whistleblower' and the journalists who facilitated his actions in a way that has not been generally echoed in official responses to, for example, Julian Assange and Edward Snowden.
In certain cases, such as the leaking of sensitive documents in the US, for example, whistleblowing may involve the commission of a criminal offence regardless of the ultimate public good that may be achieved. The challenge for any public administration is to facilitate that public good while protecting the 'whistleblower' from professional or personal damage. The ethical challenge for everyone involved is in balancing institutional needs for confidentiality with the public interest in accountability and the prevention of corruption.
"Modern day whistleblowers, and particularly those who have published staggering volumes of highly secret records, have had their motivation questioned to the point where the content of the released records is almost an afterthought"
Modern day whistleblowers, and particularly those who have published staggering volumes of highly secret records, have had their motivation questioned to the point where the content of the released records is almost an afterthought. In my own case as a former journalist, as an ombudsman and as an Irish citizen, it has been my experience that the biggest scandals in Irish public life - from financial and police corruption through to institutionalised child abuse and gross medical misconduct - have been unearthed through the bravery of largely unprotected whistleblowers. The pattern has been a failure to have their complaints heard at institutional level over long numbers of years followed by recourse either to media, political representative, or Ombudsman.
What has characterised whistleblowers' motivation is frequently laudable loyalty to the institution the individual serves allied to immense concern and frustration that the institution is failing to act on the issues raised. In Ireland's case, this series of whistleblower revelations has led to significant change including the country's first ever whistleblowing laws. It took some time, and a lot of suffering for the whistleblowers, but there is at last recognition at government level that whistleblowing has a critical role in the maintenance of public confidence in state institutions, and that it must be protected.
"What has characterised whistleblowers' motivation is frequently laudable loyalty to the institution the individual serves allied to immense concern and frustration that the institution is failing to act on the issues raised"
The commission's EU anti-corruption report released earlier this year also recognises the invaluable role whistleblowers play in overcoming "detection problems inherent to corruption". It clearly acknowledges that corruption can seriously harm the economy and undermine the trust of citizens in democratic institutions. Corruption costs and whistleblowing may help to keep those costs down. Yet the chance to do this is diminished when employees fear retaliation from colleagues and management.
The challenge therefore for the EU institutions is to develop structures to not only protect people who, in good faith, speak up about serious irregularities, but also to ensure that the substance of their complaint is fully investigated and that they are kept informed of what action will be taken to rectify the situation. The revised EU staff regulations which came into force on 1 January of this year set down clear requirements for the EU institutions to adopt internal rules to meet these challenges.
However, only the commission to date has introduced any form of guidelines for whistleblowing and there is a clear need for greater action on the part of every institution. Mindful of this, my own office has recently published its own draft internal rules and this week I launched an own-initiative investigation into nine EU institutions - including the council and commission - which focuses on getting answers to three key questions.
First, has the institution in question adopted internal rules (and not merely guidelines) in accordance with its obligations? Second, if the institution has adopted these rules, how was this done, what form did these rules take and did the various stakeholders such as staff and members of the public have the opportunity to provide comments? Third, if the institution has not yet adopted these rules, at what stage of the process is it and when does it expect the task to be completed?
The need for adequate protection of whistleblowers should by now be obvious. Trust between citizens and their public administrations at every level across the EU needs to be rebuilt and this is one way of doing it. We also have an obligation to live up to peoples' expectations that the governance structures of the EU institutions be robust, transparent and open to scrutiny and this cannot be achieved in an environment where those with information about fraud or corruption are afraid to speak up for fear of retribution.
By laying down precisely what can be expected of staff and required of staff at each stage of the process, and by training managers on how to properly deal with information about corruption, everyone is afforded greater certainty and protection.
As ombudsman, my mission is to create a more effective, accountable, transparent and ethical EU administration. Whistleblowing rules, and their effective implementation, form an essential part of that mission so I look forward to engaging with the EU institutions on this topic.