B.C.’s new info commissioner on his FOI priorities

British Columbia has traded in one Michael for another.

Michael McEvoy, the province’s Information and Privacy Commissioner since 2018, completed his six-year term on March 31. Replacing him is Michael Harvey, who until recently held the same role in Newfoundland and Labrador. In taking the job, Mr. Harvey resigned from his position a year before his own six-year tenure was up.

We’ve written about both Michaels before. Mr. McEvoy made headlines back in 2021 when he warned B.C.’s NDP government that their efforts to amend its freedom of information legislation would weaken the province’s democratic infrastructure. Those amendments included the highly controversial introduction of a fee for FOI requests. The law was ultimately amended.

Mr. Harvey, meanwhile, hails from a jurisdiction with one of Canada’s strongest FOI regimes. We profiled the Newfoundland system – and Mr. Harvey – for the Secret Canada series last year. His celebrity within the small province was such that he was occasionally recognized at the grocery store.

I spoke with him last week about what he hopes to achieve in his new role as B.C.’s access czar. Our conversation has been edited for length and clarity.

Let’s get right to the heart of the matter: This new jurisdiction is a bit of a fixer-upper compared with Newfoundland, with all of its bells and whistles. How do you see your job in the coming years?

Well, you’d be well aware that recently my predecessor issued a report on the timeliness of the British Columbian access to information system. That’s the context that I’m coming into. But that’s not to say that B.C.’s legislation and its overall system does not have sound fundamentals – I think that it absolutely does. In fact, the legislation in Newfoundland and Labrador was largely based on the legislation in B.C., and a lot of the fundamental provisions – certainly the exceptions and so on – are the same, and I’m quite familiar with them. But there’s no question there’s some challenges that the system is facing here now. Response times from public bodies are slower than they really should be.

I’m going to be spending the first part of my term understanding why that is the case, understanding the way that the law really operates. These access to information laws are complicated, and the way that they operate requires a lot of nuance and understanding in each jurisdiction. They’re different. So it’s my goal, certainly in the first year, to really get the lay of the land, to talk to public bodies to find out what they’re experiencing, and to find out where there’s opportunities for improvement.

You’ve talked about delays from public bodies – as we’ve discussed before, the system in Newfoundland was humming along very well by the time you left office just a few weeks ago. So I wonder: What would you like to see imported from the Newfoundland model?

It’s a difficult question to answer, Tom, because the systems don’t match up perfectly. And so a straight import, without really considering the nuances and the context, is a little risky. One contrast is in the hybrid authority of the commissioner in N.L., compared to the order-making power here. That hybrid model made sense for Newfoundland as a small or medium-sized jurisdiction. It did have some challenges when it came to the legal aspects of it. And there are some benefits to having order-making power. One thing that both of them have in common is that in both contexts, the majority of complaints – or requests for review, to use the language here – are resolved informally. So that’s really good.

One thing that’s really been a focus in recent years has been the application fee. That’s been a matter of significant controversy here in B.C. And as you know, I was on the record in N.L. arguing that an application fee was not really worth the trouble of collecting. And it didn’t address the problem that I think most people were trying to address with an application fee, which was the frivolous and vexatious requests. That said, I know that this has been debated very extensively in B.C., so I don’t really want to start off my term by relitigating that issue. But I think if that’s going to stay, then let’s look at recommendations on how to make that fee work better, such as allowing for applicants to maintain their anonymity, multiple different fee payment options, and encouraging public bodies to have a policy in place for when they will change the fee, or when they will charge a fee and maybe not charge a fee.

On that note, I have to reiterate here for anyone reading that the fee is discretionary, and public bodies are not obliged to charge that fee – and some of them don’t. But certainly, that issue with the fee – and trying to make sure that it doesn’t prevent legitimate access to information requests and doesn’t serve as a barrier to the right of access – is something that I’ll be focusing on.

Talking again about Newfoundland: Your approach in that jurisdiction, you really put yourself out there, right? And I imagine that’s in part because of the size of the office. But you had a big footprint: You were going on radio shows, you were very proactive about speaking to the public, communicating. Michael McEvoy did that, too, but my read was that he wasn’t as immediately “out there” as you tended to be. Is that approach something we can expect to see more of during your term?

That wasn’t really by design. There were a number of issues early in my term that drove a fair amount of media attention. And I think what happened was that when the media called and wanted to talk to me, I would answer them pretty quickly. When they learned that that was the case, they called more often. So that kind of dynamic developed.

Also, the media landscape in N.L. is quite different than in a larger province like B.C. There’s more and larger communities in a province like British Columbia, which is 10 times the size, and each of them have their own community-level concerns and localized media. It just wasn’t the same in Newfoundland. When I say I want to spend the first year of my term getting to know the landscape, my role in it and what it can be, that’s going to be a part of that. I want to maintain that same level of accessibility to the media.

We have to be modern and effective regulators. In a modern democracy, commissioners, we’re not policymakers. But there is more of a role for us to be part of the discourse than I think you would have seen a generation ago. I embrace that aspect of our education and advocacy role.

My understanding of the law here is that I’ll be a little bit more constrained about what I can say, particularly with respect to investigations, because of the provisions in the act. But if it’s within the scope of what I’m able to do, I will be responsive. I never like to do “the Commissioner declined to do an interview.” I would like that to be, “the Commissioner was happy to do an interview, even if he wasn’t able to say anything.” The “declined to do an interview” part, that’s something that I want to try to avoid, because I think it’s our job. The public has questions. If we have answers, we should provide them.

That’s a good pivot to what may be my last question here. I have some bad news for you: You’ve inherited one of my appeals, which has been snaking its way through the B.C. OIPC for two years. I think it’s fair to say that appeals shouldn’t take that long. Newfoundland’s legislation says appeals can only take 13 weeks. How do you plan to bring down processing times for your appeals?

When people have asked me the question, “What are your priorities?” I’ve answered in two ways: The first thing I’ve said is what I’ve said to you already – that rather than come in and say, “these are Michael Harvey’s priorities,” I want to understand the priorities of British Columbians, British Columbian communities, public bodies, private organizations with respect to privacy, and so on. But I’ve also been saying it is a priority for me to improve the timeliness of the performance of this office.

But we’ve got to walk our talk as well. Now, this had already been established as a priority in this office, and new resources are being brought to bear on the investigations and adjudication processes. One of the last things that the outgoing commissioner did was come up with a plan, and he talked about it with me on his way out the door. So we’re pretty confident that we have set forward a path to really bring down those backlogs on both the investigation side and the adjudication side. Because I agree with you – two years is too long.

I appreciate your confidence. But can you tell me a bit more about what that plan actually looks like, even at the broadest level?

I probably don’t want to get into too much detail. What we’re talking about is hiring more staff, both as temporary employees and on contract, to really hammer down that backlog, particularly on the investigation side. That’s a real focus for us. The benchmark that we want to get to is that we’re getting back to someone who’s made a request for review or complaint within a month. So, new staff that will hammer down on that backlog is the primary focus at this time.

It sounds like we should check in in a year.

Let’s do that. I’ll commit to checking in with you in a year, because we want to have metrics that we can report on. My predecessor was very good to get his annual report out right before he left so that I didn’t have to be reporting on his work. But that means that in about a year, I’ll be preparing my first annual report.

Well, hopefully within a year you’ll be getting stopped at the grocery store once again.

[Laughs] I don’t necessarily hope for that, Tom. I certainly do hope that I’m able to make a visible difference for the people of British Columbia.

We’d love to hear about how you’re using Secret Canada. Send us a note or use the hashtag #SecretCanada on social media. This information helps us grow the project.

To stay updated on FOI news, upcoming data releases and new features, sign up for The Globe’s Secret Canada newsletter.