Developing an investigation plan. An investigation plan is the foundation of the investigation. It will define what to, why to do it, and when it should be done. Its primary purpose is to keep the investigation focused. Before the start of a task, it should be confirmed where it fits within the plan, and whenever a task is finished, it should be marked off on the plan.
An internal investigation is generally a significant project. As with any important project, effective planning is essential to maximize the prospects of an efficient and effective outcome. Simultaneously, a plan can allow the organization’s executive to review and endorse the approach to the planned investigation.
Developing An Investigation Plan
Keeping in mind the sensitivity of most internal investigations, both the executive and the investigator can benefit from this action. Knowing that the investigator will be proceeding appropriately gives the executive more confidence. The investigator, in turn, has the comfort of knowing that their core investigation directions have executive approval.
There is no set format of an investigation plan, and it can be made as per the requirement of each investigation; however, some matters that can be usefully addressed in an investigation plan include:
An investigation overview
This is a brief narrative about how the investigation came into being. It should state how the information came to the organization’s attention, the general ambit of the investigation, the general details given by the source, and the results of any other initial inquiries, why the investigation is being conducted.
Scope and purpose
As defined and approved by the executive.
Resources
Provide an outline of the resources needed to conduct a successful investigation, including: people required, technical facilities (for example, computers, laptops, audio/video recording equipment), and vehicles.
Timeframe
Try to give an estimate of the timeframe for the investigation. This will rarely be conclusive. The organization, however, will be keen for the investigation to proceed expeditiously for the benefit of all involved. It will also want to know when the resources currently being used in the investigation are likely to be available for re-allocation. Consequently, a considered timeframe estimation is sure to be appreciated.
Affected persons
Keep a list of people (see chapter 3) that might be adversely affected by the investigation or its outcome. Think broadly about employees, members of the public, supervisors, commercial contractors, and the like, which can all fall into this category. It is important to ensure that these persons are afforded natural justice at the appropriate stages of the investigation. Accordingly, it is necessary to keep track of who these people are. Incorporating this list into the investigation plan is a convenient way to begin this process. The list will need to be updated as the investigation proceeds.
Risk management
It is recommended that the investigation teams follow the risk management guidelines involving: establishing the investigation context, identifying risks, analyzing risks, evaluating risks, and treating risks. These risk management guidelines can be accessed. Further risk assessments also need to be carried out systematically, at regular intervals, and at every critical stage during the investigation.
Information-gathering tasks
This is the heart of the planning process. Information-gathering tasks can be identified through a three-step process.
Identify possible outcomes
It is useful to consider the final report that will be prepared at the end of the investigation. What will be the core matters that are likely to be addressed in this report?
These can generally be gleaned from the terms of reference and investigation objectives that are specified in the letter or document of delegation.
In most internal investigations, the possible core outcomes will be one or more of the following: possible criminal offenses or other bases for referral; has the investigation disclosed information that should be referred to the police, the regulatory bodies, or some other law enforcement or regulatory agency? Or which offense, or another issue, will form the basis of such a referral, and what is the information about that matter that needs to be passed on?
The issue to resolve as the report is being prepared is to determine whether the material is likely to be of interest to the law enforcement or regulatory agency. If there is such a real possibility, the report should recommend that relevant information be referred to the agency.
What Alleged Conduct May Form The Basis Of Any Misconduct?
After the investigation, it will be necessary to consider whether the evidence discloses that a disciplinary offense has occurred on the balance of probabilities. Regarding each allegation or potential issue of possible misconduct, it will be necessary to recommend whether disciplinary action should be taken.
Administrative issues
The conduct of an individual may not amount to a disciplinary offense. It may disclose a weakness or incapacity that warrants some administrative responsibilities, such as the provision of specific training or personal/professional development. There may also be systems issues that need to be addressed. The information emerging in the course of the investigation will need to be considered in this context and recommendations made, if appropriate.
Identify core factual issues
Once the core reporting outcomes have been identified, they may be used to pull out the key factual issues that the investigation will need to resolve and cover in the report. The core factual issues relating to criminal conduct will normally be found in the legislation creating the offense. These are called the elements of the offense. The core factual issues relating to disciplinary offenses can normally be drawn from the organization’s code of conduct. Some different core outcomes will likely share particular core factual issues.
Identify investigation activities
Having identified the core factual issues, the next step involves identifying the investigation activities that will be undertaken to gather information about each core factual issue. Information generally falls into one of two categories: documents and things, or personal accounts.
It is often useful to consider each category separately regarding a core factual issue:
- What documents or things could I obtain about this issue?
- How would I obtain these?
- What witnesses do I need to interview about this issue?
Different people have different preferences for how they set out this information in a plan. Some people will prepare tables detailing possible core outcomes, core factual issues, and activities relevant to core factual issues. Others find tables awkward and conning and prefer to proceed in a simple, narrative format.
Once the planned activities to obtain relevant information have been identified, it is important to consider the order in which these activities will be carried out. If there is a prospect of obtaining further evidence, such as by monitoring an individual’s work computer usage, it may be necessary to refrain from engaging in any activities that might alert affected persons to the existence of the investigation until some later stage. As a rule, it is appropriate to delay interviewing affected persons until the end of the investigation when the case against them can be put before them in its most comprehensive form. A list of specific tasks for completion can be compiled and organized based on the areas of investigation.
Final Thoughts
Key documents, files, audio and visual recordings may be identified during an investigation. As needed, take steps to preserve these sources of information. In light of potential cyberbullying and harassment allegations, ask an employee if they are willing and able to provide a copy of any allegedly harassing or discriminatory online post or text message. Furthermore, request that the employee keep the information on file until otherwise instructed. Include such a request in the investigation strategy.
