On poor excuses

CTV reports that the National Arts Centre Orchestra is trying to get around any application of whistle-blower legislation by requiring its musicians to sign a confidentiality agreement:

The National Arts Centre Orchestra (NACO) is a Crown corporation, so its musicians fall under the proposed legislation.

But in an apparent effort to counter the Accountability Act, the organization asked its employees to swear never to talk about internal problems.

The article speculates that the reason for the confidentiality agreement is to stifle any comment on a series of controversies involving NACO's director. While that may or may not be the case, NACO's alternative explanation is less than compelling:

However, spokeswoman Jayne Watson said NACO is not trying to prevent its musicians from talking about Zukerman.

"Absolutely not. There no intention to stifle any profile or any conversation about Pinchas," she said.

Instead, Watson argued the confidentiality agreement is a practical way to keep sensitive personal information a secret.

"We have credit card information, we have personal data, and the police -- longstanding, first written in 1998 and updated in 2005 -- makes sure employees protect that confidential information," she said.

So what's wrong with that explanation? The whistleblower protection in the Accountability Act (see generally ss. 194-226) is added onto the Public Servants Disclosure Protection Act. Under that legislation, any disclosure may only be to a public servant's supervisor (s. 12) or the Public Sector Integrity Commissioner (s. 13), except in cases of a serious offence or an imminent and substantial health or safety risk (s. 16, which itself may not apply to employee information due to s. 16(1)). And any disclosure is subject to the following:

15.1 In making a disclosure under this Act, a public servant must
(a) provide no more information than is reasonably necessary to make the disclosure...

None of these sections appears to be changed in any relevant way by the Accountability Act. As a result, there doesn't appear to be the slightest basis for concern that NACO employees' personal information could validly be made public: presumably NACO disclosures won't involve the type of urgent situations which could necessitate bypassing the Commissioner, and even then the disclosure (if permitted at all) must be limited to the information reasonably necessary to address the urgent situation...which presumably won't include credit-card information or personal data.

It's anybody's guess as to whether or not there are other reasons for NACO's action. But it appears that the current explanation is based on either a complete misinterpretation of the contents of the planned legislation, or a misrepresentation as to how the legislation could conceivably apply. And either way, NACO's attempt to silence its employees may make it look worse than any likely disclosure could have done.

(Edit: I should note that the above discussion does presume that NACO's confidentiality agreement is in response to the Accountability Act in particular, rather than an unfortunately-timed effort to secure data for other reasons.)