5 August 2013

Everyone taking up a contract of employment accepts a duty of trust and confidence to their employer.  At its simplest the obligation is to respect the interests of the employer. Employees must act reasonably to protect their employer’s property. That includes safeguarding the employer’s information and their intellectual property.

Some choose to disregard that duty and breach the trustworthiness required of them.  The spectacular contemporary example of Edward Snowden, breaching his duty of trust to the US National Security Agency, is widely recognised as an act of betrayal. Snowden was motivated apparently by higher ideals, but acknowledges that he betrayed his employer. That is what disregard for a duty of trust and confidence involves.

A more common occurrence is the misuse of an employer’s property – which may amount to theft.

For State servants, often the most valuable property that their employing agency entrusts to them is information. It is only through their work that they become familiar with the content. Access to that information flows solely from the relationship with their employer. It is agency information. In a Department it belongs the Minister and the chief executive. In a Crown Entity it belongs to the Minister and the board Members. It never belongs to employees, although they may be tasked with using it for agency purposes. And of course agency information is often someone’s personal information and subject to the Privacy Act. Most agencies’ information is governed by the Official Information Act. If there are statutory grounds for making the information public, that is a responsibility of the agency chief executive or board; they may delegate responsibility for disclosure. It is not a discretion for an employee to decide what should be published.

Where a State servant becomes aware, as a consequence of information gained though their employment, that powers are being exercised improperly and appear to reflect serious wrongdoing, the Protected Disclosures Act provides a statutory process for alerting senior officials who can remedy matters. It is never appropriate to pass that information to the media.

The focus being given to the GCSB has led to much comment recently about journalists, the function of the “fourth estate” and the role of the media to blow the whistle on misconduct in government.

Journalists depend on information for their stories.  Investigative journalism is the art of cultivating information sources.  That cultivation may involve suborning an official, of encouraging disclosure of official information in breach of a State servant’s duty to properly manage that information.  A reporter may intentionally undermine the trust and confidence obligation a State servant has to their agency.

At times the Parliamentary Press Gallery has characteristics in common with foxes running free in the hen house.   Journalists getting a story lead from a contact in Parliament will seek off-the-record comment from State servants, although knowing that few will have authority to respond.

One of the 18 Standards of Integrity and Conduct for the State Services is to treat information with care and use it only for proper purposes. The Head of the State Services explains in Understanding the Code that

“…it is a breach of trust for us to make use of information that we have learned through our work, or to disclose it in any way, unless we have permission to do so. We should always be very circumspect about discussing our organisation’s information when we are not directly engaged in organisation business, and be aware that, unless we have authorisation or it is a matter of public record, we do not disclose official information at external meetings (despite any claim to “Chatham House” rules) or in any academic activities we undertake.”

The code was developed and applied to agencies (including their employees) by statutory prescription. The code is delegated legislation. Journalists when championing the freedom to seek out newsworthy stories may wish to consider the implications of cajoling others to breach their lawful duties. Perhaps the propensity to approach State servants knowing they cannot discuss agency business, but encouraging comment regardless, is why the NZDF considered investigative journalists to be potentially subversive. Is the intention of such approaches not to subvert obligations under the code of conduct?