BC’s Watchdog on Why He Supports Widely Criticized Freedom of Information Changes

British Columbia’s freedom of information or FOI system faces threats but, despite concerns raised by critics, they don’t include changes in an NDP government bill being debated in the province’s legislature.

That’s the assessment of Michael Harvey, who has been the province’s independent information and privacy commissioner since he was appointed on the recommendation of an all-party committee almost two years ago.

“Our law here in British Columbia is one of the best FOI laws in the country and I think it will remain so after these amendments,” said Harvey, who previously served five years in a similar position in Newfoundland and Labrador.

“At this point I’m actually less concerned about the statute itself than about its operationalization,” he said, adding that his office handles about 1,500 complaints and reviews each year under the Freedom of Information and Protection of Privacy Act. “Those numbers are sharply increasing.”

While Harvey said there’s been a worryingly sharp decrease in the overall number of FOI requests — a decline he says is likely related to the introduction of an application fee in 2021 — many of the remaining requests have become overly broad and complex.

“They will seek ‘any and all’ records, no matter how many records they are, they won’t narrow their requests, and many of them, a small number, but some of them are becoming very combative with public bodies, even with our own offices,” Harvey said.

“This has led public bodies to feel like they’re under siege,” he continued. “This is what I’m really concerned about, and this is, I think, context that people need to understand. There’s significant operational issues with our FOI system that have been recognized by the government, that have been recognized by other public bodies and that we recognize ourselves.”

For that reason he supports the changes that Citizens’ Services Minister Diana Gibson introduced with the Freedom of Information and Protection of Privacy Amendment Act, 2026, in late February.

Gibson said the legislation makes minor changes that will make the system work better.

But MLAs with both the Conservative Party of BC and the BC Greens say the bill is part of a long-term erosion of access rights and will make it even harder for people trying to get information from the government.

The Freedom of Information and Privacy Association, an advocacy group, has also said parts of the bill will weaken access rights and reduce transparency. “It shifts the balance of power further away from the requester and towards the government, the head of the public body, in a couple of ways that are really problematic,” the association’s president, Mike Larsen, told The Tyee.

In expressing their concerns, MLAs and advocates have noted what they consider Harvey’s weak response to the bill. In a statement his office released within minutes of Gibson introducing the bill, he stressed he was pleased to have been consulted and expressed approval for the changes.

Larsen said the response was disappointing.

“For an organization that has a mandate to support freedom of information and transparency, at minimum there are some serious questions that have to be posed about a couple of the clauses in the bill.”

Speaking in the legislature, BC Green MLA Rob Botterell strongly opposed the bill and described Harvey’s support for it as part of the “steady degradation of our democracy” in the province.

“No other commissioner in Canada would ever countenance some of the amendments that are proposed in this legislation,” he said.

Botterell, who represents Saanich North and the Islands, is a lawyer who led the team that drafted the province’s original freedom of information law that passed in 1992.

Asked about the criticisms, Harvey stressed the independence of his role and his office. “I don’t work for the government, so it’s not my job to curry favour with the government or report to a minister or anything like that,” he said. “My perspectives are my own... and those that reflect the expertise of this office.”

There are about 65 staff in the office with many years of experience administering the act, he said.

“A lot of people talk about the FOI system, but the perspective I’m coming from is based on real day-to-day sleeves-rolled-up administration of this act, and knowledge of how FOI systems work across the country.”

Some of the changes the government is making sound like minor tweaks of language, but critics say they will have a significant impact if the bill passes.

The current law says an applicant needs to make a written request that “provides enough detail to enable an experienced employee of the public body, with a reasonable effort, to identify the record sought.”

That will be replaced with a new section requiring that the request, “in the opinion of the head of the public body, provides enough detail to enable an experienced employee of the public body, with a reasonable effort and in a reasonable amount of time, to identify the record sought.”

The new language adds in both “the opinion of the head of the public body” and the limitation that identifying the record can be done “in a reasonable amount of time.”

A section requiring the public body to “make every reasonable effort to assist applicants and respond without delay” will be changed so that the assistance is provided “without unreasonable delay.”

The bill also allows for requests to be disregarded if the applicant’s behaviour is “abusive” or “malicious” or if responding would unreasonably interfere with the operations of the government. Previously the section referred to only the operations of the public body to which the request was made.

Making the change to “without unreasonable delay” reflects the reality of what’s actually happening on a day-to-day basis as public bodies respond to requests, Harvey said. “Many of these requests that are coming in are for exceptionally broad records.”

There are many reasons for that, including the $10 fee, which he remains opposed to, he said. “It provides incentives for people to just submit one really broad request and not want to narrow it.”

Changing the language reflects the challenge public bodies have with those broad requests, he said, adding that his office will still have oversight of those decisions and the ability to overturn them.

Nor is Harvey concerned about adding in the ability to refuse requests that would interfere with the operations of the government. “This is language that spans jurisdictions,” he said.

For the last decade there has been a challenge across the country with a small number of people who, by “abusing” the system, consume significant resources of public bodies, the commissioner’s office and even the courts, Harvey said.

“This small number of people that consume a disproportional amount of resources of the FOI system are not only challenging to deal with in their own right, but they impinge upon the right of access of other people that aren’t doing that,” he said. “And my job is to defend the right of access of everyone.”

Based on what he’s observed of how some people engage with his office, Harvey said, he also supports new rules allowing public bodies to refuse to deal with the small but growing number of people who are malicious or abusive.

“I’m talking about people that interact with our staff that use homophobic, misogynistic language to talk to our staff, and this is a growing problem,” he said. “As an employer of those people, I need to be concerned about what harms they’re being subjected to, so this is a big issue that we’re dealing with in this office with people and that public bodies are dealing with.”

Aside from consuming substantial resources and time, he said, this small number of requesters cause real harm to staff in the Office of the Information and Privacy Commissioner and public bodies. “I really want us to have all of the tools available so that we can deal with these abusive behaviours when they occur.”

Harvey said he thinks it’s positive there’s lively discussion around the government’s bill and it’s showing that people care about the FOI system, transparency and democracy.

Overall, though, he disagrees that the bill negatively affects the Office of the Information and Privacy Commissioner or his authority to provide oversight of the FOI system, he said.

“It may be the case that my assessment is incorrect and that I’ll find myself in a couple of years from now fighting an uphill battle because there are those that interpret that my oversight role has been diminished,” he said.

“If that is the case, then I will assert my jurisdiction and we’ll just have to see where that goes through means of judicial review as is the normal course. But it is my assessment that that is not what these amendments do.”

It can be tricky to balance advocacy with the quasi-judicial role the commissioner’s office plays, Harvey said.

“What I will say is that if I thought that this bill weakened my statutory authority to defend the right of access for the people of this province, I would strongly speak out against it,” he said. “If people looked at my track record over the course of my career as commissioner, they would have seen that I have done that when I thought that was the case, but it is our assessment that that is not what is happening here.”

That’s not to say the law governing B.C.’s FOI system can’t be improved, said Harvey.

He mentioned several changes he wants: the application fee needs to be removed; better metrics are needed on how public bodies outside of the core government, such as health authorities, are responding to FOI requests; and his office should have oversight of records management so that there can be enforcement of duty to document legislation.

“There’s no question I have numerous priorities for statutory reform, and there is a procedure for statutory reform to be considered by a legislative committee and for that to be a public process,” he said. “That’s where I intend to advance my major priorities for reform and that’s the most appropriate way for me to do that.”

Under the law, reviews take place every six years. The committee takes submissions, holds hearings and makes public recommendations. Past committees have made dozens of recommendations, few of which governments have acted on.

Asked about governments ignoring recommendations, Harvey said that is really a question for the government.

“I do try to wear rose-coloured glasses to the office most days, and what I’ll say is the primary value of a statutory review is that it is a public process,” he said. “When it comes to the major policy priorities of this office I like it when I can do that in public and when people can see the full reasoning of my major policy priorities for reform and people can comment on those, and then I can see what other people have made and comment on those policy proposals, and then that’s kind of my role.”

Whether the recommendations lead to change is another question, he said. “What the government does with it is their role and the fact that it’s public and the fact that this is a democratic system. Is that good? Well my answer is, is democracy good? Well it’s the best system we’ve got.”

Harvey said his top priority is addressing citizens’ falling trust in governments and other public institutions.

“I think we’re in a crisis of trust in this country, in this province, around the world, and I think it’s important we all focus on what we can do to improve that situation,” he said.

“The situation I’m in is I have a willing partner in the provincial government to try to work on making that FOI system work better,” he added. “There’s other places in this country I could be where I wouldn’t have that willing partner, but I’ve got one here, or at least certainly I’ve got one that says it is.”