Information leaks can be critical to preserving democracy

Sharing secrets can be an act of defiance, or a last resort. Public servants must take steps to ensure they have exhausted all other options.

Recent leaks from inside the Canadian security establishment have raised questions about the proper roles of public servants and journalists in holding governments accountable. One prominent example alleged a cover-up of Chinese interference in Canadian elections. Another implicated a sitting member of Parliament in the scandal.

The unauthorized release of government information may sometimes support increased transparency and accountability. On the other hand, leaks run the risk of eroding trust in democratic institutions. Fortunately, public servants and journalists have guideposts.

The public servant’s dilemma

Not all government leaks are created equal. For instance, politicians and their partisan staffers routinely “leak” information to the media for tactical purposes. The other kind of leak – the kind we are focusing on – is the sort carried out by public servants who are part of the bureaucracy. In other words, whose jobs are unconnected to election results or who is running the government.

In the course of their duties, bureaucrats across Canada often harbour opinions that digress with the cabinet ministers they serve. They are also keyed into the fact they have a duty to provide fearless advice and loyally implement the directives of those same elected leaders. As a result, few entertain the thought of releasing confidential information to the media.

Nonetheless, these constraints can leave public servants in a difficult position when their views diverge significantly from the government’s. Oaths to the Crown and codes of conduct provide only general guidelines; the choice to leak often boils down to a matter of personal ethics.

A bureaucrat may choose to turn a blind eye to what they perceive as wrongdoing, perhaps asking for reassignment. In more radical cases, they may opt to resign from their position or pursue an often weak whistleblower process (if available at all). Ultimately, a small number who find themselves in this situation make the choice to release protected information to the opposition, social media, or the press.

Leaking can be an act of defiance, or a kind of last resort: the Westminster system was not designed to empower public servants to hold the government to account. That is the formal function of legislators and the voters that elect them. Freedom of the press also assigns the media an important role in holding the government to account.

Public servants are not accountable to the public in the same way that politicians are. The former advise and the latter decide, allowing Canadians to hold the ultimate decision-makers accountable through elections. The public has no such check on the judgment of public servants.

There are times, however, when leaking may be appropriate or even necessary. For example, if a government’s actions (or inaction) could be unconstitutional or illegal. Reasonable people might conclude that the government’s approach could have the potential to do significant harm to individuals or society at large. In those cases, we should expect public servants to disclose the wrongdoing if they feel it is safe to do so. Matters of public health, public safety, democratic rights and freedoms, national security, corruption, and fiscal mismanagement certainly fit this bill.

In order to be justified, other important steps should be taken prior to leaking. First, the public servant should exhaust all internal options to resolve the situation. If their superiors and ethics or integrity commissioners are unwilling to address the issue, or if solid whistleblowing processes are unavailable, the public servant is wise to seek advice from their union or legal counsel.

If it turns out no internal remedy is possible, the public servant must weigh the harms involved.

• Are they convinced the harm is egregious, ongoing, or imminent? And will a leak help solve it?

• Can the harm be addressed, or the information released, through other means?

• Does the real or potential harm done by the government to an individual, group of people, or society at large outweigh the harm from the leak itself?

• Is the public servant prepared to face the professional and personal repercussions, including loss of employment or criminal charges?

Justice officials confronted with evidence of wrongful convictions may find themselves in this dilemma. Saying nothing to support someone who is wrongfully imprisoned results in the denial of a person’s freedom. The harm done to that individual and their family far outweighs the reputational damage to anyone in the public service. While the leak may bring short-term criticisms of the justice system, resolving wrongful convictions is crucial to preventing future ones. It may actually strengthen our justice system.

Public servants in these types of situations should consider those broader implications. Leaking damages the relationship between elected officials and the non-partisan bureaucrats who support them. This can reduce the influence of experts in government decision-making and the capacity of democratically elected governments to fulfil their agendas.

This said, governments bear a lot of responsibility for public service leaks. Ministers and their partisan staff often hide behind the screen of freedom of information and whistleblowing processes designed to withhold more than they disclose to the public. This may place a public servant in a bind, feeling forced to act as their own arbiter of what is in the public interest. The role of news media Journalists play a crucial role in holding governments accountable. Leaks from within the public service can be a significant source of information in this regard. But they must be treated with due diligence. In particular, the media must apply two criteria when handling leaks: factual truth and public interest.

Any time a news organization reports on information or events that were meant to remain unexposed, they have the journalistic responsibility of ensuring the reports are factually accurate. Journalism, at its core remains a discipline of verification, whereby journalists not only establish facts but also the truth about those facts. Whether the reports are based on actual documentation, accounts of people who were “in the room”, or details of an important event ( like a government budget) in advance of its official release, leak-based stories must be fully vetted.

Determining the accuracy of leaked information involves considering the broader context of the disclosure. If a public servant has exhausted all internal avenues, this means they have provided the soon-to-be-leaked information to their supervisor or an independent officer, like the integrity commissioner. As Ben Bradlee Jr. recently detailed, the person who leaked the Pentagon Papers first tried to make the documents public through two U.S. senators.

The public servant’s vantage point is necessarily narrower than their superiors’. Public opinion, prior government commitments, party ideology, national security concerns, intergovernmental obligations, and other elements also factor into their thinking. Moreover, conflicting viewpoints can contradict or completely eclipse one public servant’s best advice.

Journalists and their editors should bear all of this in mind when determining whether to run a story containing leaked information.

Beyond this, mere accuracy is not enough. Journalists must have assurances that what they report is in the public interest. In many instances, leaked information serves only to embarrass or debase elected officials.

By contrast, leaks stemming from genuine ethical convictions can serve as an important safety valve in our system of democratic decision-making. Once a public servant has exhausted all institutional avenues, and believe their superiors are willfully neglecting laws, public health, or public safety at the expense of the public good, a public servant may be justified in leaking information to the press.

Leaks, in this sense, contribute to the public’s understanding of an

institution, a policy, or an act being sponsored by members of the government. The public’s interest in knowing the information should be connected to real and pressing issues. It must impact a person’s rights, occupation or livelihood, or relationship with government. In other words, it cannot simply be salacious.

In Canada, some public service leaks have resulted in major public policy reforms. The Tunagate scandal forced the resignation of the federal fisheries minister, John Fraser, for instance, and kickstarted the revamp of food quality and safety regulations in Canada. Leaked documents related to the negotiation of the Transpacific Partnership trade pact coincided with revisions to certain clauses to Canada’s benefit.

The same argument could be made for informing the public about the true dangers of climate change, systemic racism, a global pandemic, or foreign interference in our elections.

Leaks from the public service are not inherently “good” or “bad.” From the vantage point of both the public servant and the journalist, a leak must meet certain standards of accuracy to contribute to the public good.

This is why journalists must show their homework when reporting leaks. Transparency and integrity are crucial to maintain Canadians’ trust in both the public service and the media. As opposed to indiscriminate document dumps or leaks to political opponents, journalists’ work is integral to ensuring Canadians have the information necessary – and to which they are entitled – to hold the government accountable during and in between elections.