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Vaughn Palmer: Information commissioner wrong in denying an NDP culture of secrecy

Opinion: Michael Harvey has been vocal is defending Bill 9, saying it does not materially damage access to B.C. government information

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VICTORIA — Information and Privacy Commissioner Michael Harvey is defending the NDP government’s Bill 9 from critics who say that it would “weaken” and even “eviscerate” the province’s freedom of information legislation.

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Harvey insists the provisions giving public service heads greater leeway to delay, narrow and outright reject information requests do not reflect a “culture of secrecy.”

He sees them as a necessary reform for a system overwhelmed by the volume of requests, some exceedingly persistent, which is leading to “public bodies feeling they are under siege.”

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The information commissioner — I hesitate to call him a watchdog in this case — defended Bill 9 in a presentation Sunday at the Unitarian church in Vancouver.

He says the legislation is a necessary first step to restoring “trust” in the freedom-of-information system in B.C.

Not trust on the part of the public. But rather trust within the public service, which has “lost confidence” in freedom of information, according to Harvey.

“The problem is mainly that administering the system is a lot of work,” the commissioner argued. “There are only so many scarce resources (and) the FOI system is seen as a tedious distraction.”

He also expressed sympathy for public service head Shannon Salter, deputy minister to Premier David Eby, who “is trying to deal with a $11 billion deficit.”

Harvey extended his rationalization to the NDP government decision to impose a $10 application fee for freedom of information filings. His predecessor Michael McEvoy opposed the fee and Harvey said he would like it to be gone as well.

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Yet he maintains “it was not driven by secrecy, but because the system was bogged down by requests.”

After the speech, Harvey was interviewed by Stanley Tromp, journalist, researcher and a dedicated advocate of public access to information.

Tromp reminded the commissioner of a recent statement from the freedom of information and privacy association, which lumped Bill 9 with a group of measures as part of a Canada-wide “transparency horror show.”

“I must respectfully disagree,” said Harvey, noting recent restrictions in Ontario were more severe.

“I don’t speak for the government,” he said.

But he sees it as his duty to talk about his experience in dealing with the province, which consulted him in advance on Bill 9.

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“My assessment of this bill is it does not involve a retrenchment of the right to access. It does not involve a diminishment of the commissioner’s authority to protect your right to access.”

Harvey disputed a suggestion that he had “endorsed” Bill 9, though the New Democrats surely saw his initial comments in that light.

The commissioner praised the government for choosing “to work with us” and described the legislation uncritically, as an effort to “address operational pressures and clarify specific sections of the Act.”

In contrast, one of the fathers of B.C.’s Freedom of Information and Protection of Privacy Act recently delivered a withering denunciation of Bill 9 on the floor of the legislature.

Green MLA Rob Botterell headed the public service team that put together the act under NDP premier Mike Harcourt 30 years ago. It passed unanimously and was regarded as the strongest of its kind in the country.

Today, Botterell sees Bill 9 as the latest move in a drive to transform “freedom of information to freedom FROM information.”

While acknowledging how the law was weakened under the previous B.C. Liberal government, Botterell reserved particular scorn for the David Eby-led New Democrats.

“We now know the concentration of power and decision-making in the premier’s office,” said the Green MLA. “The removal of checks and balances, such as the merit commissioner. The lack of oversight and involvement of key legislative committees. The move to put everything in opaque, cabinet, premier-decided regulations where there is not the scrutiny of the legislature. The use of budget cuts to justify reducing review or consultation.”

In blasting Bill 9, Botterell cited the provision that allows public service heads to reject information requests if “responding would unreasonably interfere with the operations of the public body or the government of B.C.”

Harvey was asked about that exemption as well.

He sidestepped, focusing instead on a separate clause that says complaints can be rejected if “the applicant is malicious or abusive.”

The commissioner knows some of the history of the B.C. legislation. It was the basis of a similar law in Newfoundland, where he served as commissioner before taking up the job here in B.C. two years ago.

He says Newfoundland and Labrador adopted FOI legislation to overcome a “culture of secrecy.” Yet he maintains that was not what he found in B.C.

“The narrative that governments around Canada are motivated to keep secrets is not what we are seeing here in B.C.,” said Harvey.

No culture of secrecy in B.C.?

The New Democrats made a call that served them well when they took Harvey into their confidence on Bill 9.

You only need to review this government’s record of secrecy, coverup and denial on Indigenous reconciliation to realize that on many other matters, this commissioner does not know what he is talking about.

vpalmer@postmedia.com

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