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As an external investigator, I conduct investigations for various organizations using their policies and procedures as the basis for my process. Sometimes these organizations include within their policy a requirement that parties and witnesses be given the opportunity to review and sign off on my interview notes, or a statement that I have prepared based on my notes. While there is nothing necessarily wrong with this requirement, I often wonder whether whatever benefit it might provide justifies the negative impact of this step on the timing and confidentiality of my process.
When I began my career conducting investigations at the Ontario Human Rights Commission, it was our practice to send typed statements to the parties and witnesses for their review and signature. Often when I received the statements back, I was surprised to find red-ink edits not just to their answers, but to my questions as well. The review process was often used by individuals to reshape their evidence because they did not like the look of it in print.
I had other concerns with sending out statements for review. Often, it took a long time to get the statements back and I felt restricted in my ability to move forward in the process. I also wondered about the impact on the confidentiality of the investigation process of having witness statements “out there” beyond my control. While having the parties or witnesses review my notes immediately at the end of the interview helped address the confidentiality concern, it sometimes required someone to spend an hour or more reviewing my notes at the end of a long interview when their attention span was not at its best.
The fact is, even if someone edits their responses while reviewing my notes, I am often going to rely on the original content of my notes as an accurate reflection of what was said, though I might add a note in my report to say that they later changed their story. If that’s the case, what is the value of having them review my notes? Is there a better option?
For years, I relied on several things during my interviews to feel confident that my notes, and therefore my reports, were accurate reflections of the evidence provided to me by parties and witnesses. I relied on:
- A modulated interview pace;
- Constant breaks to maintain mental and physical energy;
- Regular verbal recapping of evidence back to the witness during the interview; and
- Allowing the witness (or their rep) to also take notes as a check on my own note-taking.
Over time, I’ve also come to believe that recording my interviews provides an even better safeguard relating to the accuracy of my reports.
By recording my interviews, I have an accurate and complete record of the interview that I can rely on while preparing my report. Because it is an objective record of what was said, it requires no review by the party, nor does it necessitate any time delay for a “sign-off”. As I am the one tasked with maintaining the confidentiality of the process, I retain the recording and don’t need to worry about copies being in the possession of others. Lastly, in my experience, parties to the complaint are often comforted by the recording, because it means if they later feel misquoted, there is something on which they can rely to support their claim.
When an organizational policy or collective agreement requires the investigator to share their notes (or subsequently prepared witness statements) with the parties, it is a necessary step to be taken. Workplace investigations will be judged, in part, on whether they are completed in compliance with internal policies. But should your policy or agreement be silent on this step, or should you be in the process of revising such documents, consider whether there are alternate means by which you can ensure the accuracy and integrity of your notes and reports without negatively impacting the timing and/or confidentiality of your investigation process. In doing so, you might say good-bye to the sign-off and move to other means of recording evidence that improves the speed, confidentiality, and accuracy of your investigation processes and reports.
About the Author: Toronto Employment Lawyer Cory Boyd, since beginning his career, has worked with the Ontario Human Rights Commission, the Ministry of Community Safety and Correctional Services, and Toronto Community Housing as an in-house investigator and human rights consultant. At Rubin Thomlinson, he continues to apply his analytical skills to conducting workplace investigations and preparing thorough reports.