Privacy czar’s position likely to be empty for a while

It has been well over a year since the last full-time B.C. information and privacy commissioner, Elizabeth Denham, let the government know she was setting sail for the U.K.

Everyone knew she was going to be hard to replace, but what has happened since March 2016 is not only ridiculous, it is becoming dangerous, because the ongoing shenanigans in B.C. politics might mean her permanent replacement will not be appointed any time soon.

The office has been getting by with an acting commissioner, Drew McArthur, who is on his second term in the position, but that is not the way the system is supposed to work.

The commissioner is an officer of the legislature, and the Freedom of Information and Protection of Privacy Act requires that the commissioner be appointed after a two-step process. The first step is that the person must be recommended unanimously by a legislative committee set up for the purpose, but must also be approved through a vote of the full legislature.

This process shows that the intention of those who created the FOI and privacy regime was that the person filling the job was not only independent of government, but would also enjoy the support of all the parties in the legislature, and presumably of the people of this province.

On the other hand, the acting commissioner is clearly a stopgap designed to cover situations where there is an unexpected vacancy or the commissioner is unable to carry out his or her functions. The acting commissioner is appointed by the government alone, and holds office until a new commissioner is appointed, a suspension of the commissioner ends, he or she returns from a temporary absence or “the legislative assembly has sat for 20 days after the date of the acting commissioner’s appointment.”

That 20-sitting-day period has already run out once, and the government appointed McArthur to a second term after a threeday gap.

This was done to avoid having his appointment challenged, since there is no provision in the law for reappointment. Coincidentally (or not), this was also the time the government was pushing through a bill it claimed created a “duty to document” (it does no such thing).

There is a reason acting commissioners are difficult to reappoint. The underlying premise of the act is that because of the importance of information rights, the commissioner who acts as the watchdog of those rights must enjoy the support of all parties.

It would undermine the law if the government of the day could keep appointing its choice to the position, especially if (as is not the case with McArthur) the other parties had little or no confidence in them.

It is not entirely clear how we have got into this situation, but it is crystal clear that we have to get out of it, and soon. The government originally set up the selection committee even before Denham handed in her notice, and it had two rounds of interviews before handing back a report that members were unable to agree on a candidate.

The 20-sitting-day clock will start ticking for the acting commissioner as soon as the legislature comes back on June 22. If there is a fall sitting, his second term could be over by November. This means it is vital that whoever forms government sets up a new selection committee as soon as possible.

If they don’t, the province could be faced with the unpalatable option of a third (or maybe fourth) acting commissioner.

This has to stop. The commissioner must have the support of the legislature, not just the government, and must also have a term longer than 20 sitting days.

A new committee with different membership is the only way that is going to happen, and it needs to happen sooner rather than later.