Do You Want An Independent or Internal Investigation?

When your youth organization faces allegations of serious injury or abuse, the first question you need to decide is whether to commission an internal investigation or an independent one.  You will have to weigh several factors when deciding which is best.

Internal Investigations - Some organizations faced with reviewing a child abuse claim prefer to conduct an internal investigation. If managed by attorneys, an internal investigation can help the organization keep the process and the results confidential. This is because, when attorneys are leading an internal investigation that is specifically designed to determine the underlying facts and provide legal advice, the attorney-client privilege applies to the investigation. Such an internal investigation in a case involving child abuse or maltreatment can, as a result, be managed in a way that the organization is protected from disclosing the information obtained in the process, as well as the results, from disclosure to the public or to a claimant in a lawsuit. At the same time, to maintain that confidentiality, it is important that attorneys actually conduct and control the process. Simply having an attorney ask someone in the organization—the HR professional, for example—to conduct the investigation and report back may not suffice. 

Internal investigations suffer from the problem that outsiders—the victim and family, the media, the community—may see them as simply an effort to “paper over” whatever occurred. As the old adage goes, “the cover-up is worse than the crime,” and the public tends to view internal investigations in light of that phrase. In truth, internal investigations do sometimes display a bias towards protecting the organization. Because insiders are handling it, they often assume that the organization is right and may treat the claimants as opponents rather than potential victims. Internal investigations, therefore, are best for incidents or situations that are low-profile and not likely to garner public attention or call into question the organization’s reputation.

Independent Investigations - Independent investigations are best whenever a problem is or likely to become public. What makes an investigation independent? While there are no specific definitions, there are a number of factors:

1. Are the investigators beholden to the client? Organizations seeking an independent investigation should consider retaining (1) investigators who have not done prior work for the organization and (2) who are obligated to independence and have no other duty to the organization.
2. Do the investigators have free reign? For an investigation to be truly independent, those charged with conducting it must have the freedom to interview whomever they desire regarding the matter; sufficient budget authority to carry out their work; and unrestricted access to any documents or other information held by the organization.
3. Do the investigators have independence to report? Often, the engagement agreement between an organization and its independent investigators makes clear that the organization may not modify the investigators’ final report before it is released to the public. Contrary to popular belief, this requirement does not mean the organization cannot view the report prior to its public release, but it does mean that the investigators are free to accept or ignore any of the organization’s proposed changes prior to the public release. 

In general, the more credibility you need for the investigation, the more likely will you need independent investigators.  The more routine the investigation, the more likely you will be able to handle it as an in-house matter.  Whichever model you choose, be very clear with your investigators from the beginning about the parameters of the project.