Information and Privacy Commissioner Michael Harvey has considered the claims of reasonable apprehension of bias brought against him by the provincial government and rejected them. The Commissioner believes it is in the public interest and in accordance with his statutory mandate to have the investigation completed in a timely manner and the report released to the public. For this reason, Commissioner Harvey has decided to recuse himself from further involvement in the investigation to avoid a lengthy and expensive court proceeding.

The Commissioner is delegating his authority to conduct and conclude this investigation to Sean Murray, Director of Research and Quality Assurance, in accordance with section 103 of the Access to Information and Protection of Privacy Act, 2015 and section 80 of the Personal Health Information Act.

On March 15, 2023, the provincial government brought an application before the Supreme Court of Newfoundland and Labrador seeking an order to prevent the Information and Privacy Commissioner from continuing to direct the ongoing investigation into the October 2021 cyber attack against the provincial health system. The government argues that, because the Commissioner sat on the Board of Directors of the Newfoundland and Labrador Centre for Health Information (2018-2019) and was an Assistant Deputy Minister in the Department of Health and Community Services (2015-2019), there is a reasonable apprehension of bias.

The Commissioner is surprised to find this matter being raised at this juncture, more than a year into the investigation, as his roles with NLCHI and the Department were well known to all parties at the beginning of the investigation. Moreover, the four Regional Health Authorities (RHAs) wrote to the Commissioner on February 28, 2022, asking him to formally consider the matter of bias. The Commissioner consulted staff and outside legal counsel, and reviewed all of the records from his time on the Board. The legal analysis combined with a review of those records confirmed that he had not had any significant involvement with cyber security issues, and there was no reasonable apprehension of bias, which he communicated to the RHAs. There was no further correspondence on the matter and the RHAs continued to cooperate with the investigation.

“While I maintain that there is no actual bias or reasonable apprehension of bias with me concluding this investigation, my priority is to avoid any further delay in the release of our Office’s report,” said Commissioner Harvey. “It is in the greater public interest that the report gets out, than for me to be the one to issue it. I have every confidence in our lead investigator, the technical experts that we have contracted, and Sean Murray – who has eighteen years of experience with the OIPC, to conclude this investigation.”

The Commissioner and the OIPC expect this decision will open the way for all parties to cooperate with the investigation without further delay.

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Media contact
Sean Murray
Director of Research and Quality Assurance
709-729-6309