Billy Smyth, Chairman, Galway Bay Against Salmon Cages and the Marine Institute

• Case Number: CEI/15/0013
• Decision Date: 09 June 2016
• Issuer: The Marine Institute
• Applied Rules: Art.8(a)(iv) Art.9(1)(c), European Communities (Access to Information on the Environment) Regulations, 2007
• Court: Commissioner for Environmental Information

Billy Smyth, Chairman, Galway Bay Against Salmon Cages and the Marine Institute

From Office of the Commissioner for Environmental Information (OCEI)

Case number: CEI/15/0013

Published on 9 June 2016

1. Background
2. Scope of Review
3. Analysis and Findings
4. Decision
5. Appeal to the High Court

Background

On 17 February 2015 the appellant, acting as Chairman of 'Galway Bay Against Salmon Cages', submitted an AIE request to the Institute, saying that: "Marine Harvest, in their stock market report for the 4th quarter 2014, state that 'there were 2 sites (salmon farms) diagnosed with Pancreas Disease (PD) in the fourth quarter of 2014. Reduced survival due to PD was reported in Ireland in the period'. As the Marine Institute is the authority that fish diseases must be reported to, I request the following information:

1. What sites were affected with PD in Ireland in 2014?

2. How many fish mortalities were there at these 2 sites?

3. Were the fish that survived treated or culled?"

I understand that the second question in the AIE request should be understood as a request for information showing how many fish mortalities were due to PD, site by site, in 2014.

The appellant received no response by 16 March 2015. According to article 10(7) of the AIE Regulations, a decision to refuse the request is deemed to have been made on the date of expiry of a one month period, which was 16 March 2015 in this case.

The Institute replied to the appellant on 24 March 2015, saying that there had been a delay in responding to the request because it had not been sent directly to its Freedom of Information contact office. It acknowledged holding information on the occurrence of PD at a single Marine Harvest site during the first half of 2014, but denied holding any other relevant information. It refused the request on the ground of article 8(a)(ii) of the AIE Regulations, because disclosure would adversely affect the interests of the supplier of the information.

The Institute also informed the appellant that "in general, fish that survive PD are not culled. No medicines/chemicals are used as a consequence of a disease-diagnosis. Management of a disease outbreak is dealt with by maximising animal welfare -- e.g. the animals are handled as little as possible and stress factors are kept to a minimum".

The appellant requested an internal review of the decision. The Institute reviewed the decision and replied on 29 April 2015, affirming its decision to refuse the request. Refusal was said to be justified on the grounds of articles 8(a)(ii) and article 9(1)(c), because disclosure would adversely affect commercial or industrial confidentiality. The Institute also set out its reasons for concluding that the public interest favoured refusal, most notably because of the public interest in fish-farm operators continuing to voluntarily provide information on non-listed diseases.

The appellant appealed to my Office on 15 May 2015. I regret the delay which occurred in dealing with this case. The delay arose due to a shortage of resources at my Office which has since been addressed.

Scope of Review

Under article 12(5) of the AIE Regulations, my role is to review the Institute's internal review decision to refuse the request.

In conducting this review, I took account of the submissions made by the appellant, by the Institute and by Marine Harvest. I had regard to: the 2013 Guidance document provided by the Minister for the Environment, Community and Local Government on the implementation of the AIE Regulations; Directive 2003/4/EC, upon which the AIE Regulations are based; the 1998 United Nations Economic Commission for Europe Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the Aarhus Convention); and The Aarhus Convention -- An Implementation Guide (Second edition, June 2014)(the Aarhus Guide).

Relevant AIE provisions

Article 8(a)(ii) provides (subject to article 10(3)) that a public authority shall not make available environmental information where disclosure of the information would adversely affect the interests of any person who, voluntarily and without being under, or capable of being put under, a legal obligation to do so, supplied the information requested, unless that person has consented to the release of that information.

Article 9(1)(c) provides (subject to article 10(3)) that a public authority may refuse to make available environmental information where disclosure of the information would adversely affect commercial or industrial confidentiality, where such confidentiality is provided for in national or Community law to protect a legitimate economic interest.

Article 10(3) provides that a public authority shall consider each request on an individual basis and weigh the public interest served by disclosure against the interest served by refusal.

The Institute's position

The Institute submitted that Ireland has a disease-free status with regard to diseases listed in Part II of Annex IV to Council Directive 2006/88EC (which, it says, regulates the fish-farming industry). Such diseases are known as "listed diseases". PD is a non-listed disease.

The Institute submitted that Directive 2006/88EC creates no legal onus on a fish-farm operator to report any case of a non-listed disease to the competent national authority. It submitted that operators are obliged to report the suspicion of, or presence of, a listed disease and to investigate increased mortality to rule out the presence of a listed disease.

The Institute acknowledges that Directive 2006/88EC requires that "for a disease not subject to Community measures, but which is of local importance, the aquaculture industry should , with the assistance of the competent authorities of Member States, take more responsibility for preventing the introduction of, or controlling, such diseases through self-regulation and ... codes of practice". I understand that PD is such a disease. The Institute submitted that the relevant code of practice in Ireland consists of a Code of Practice and an accompanying Farmed Salmonid Health Handbook.

The Institute submitted that, while it is not mandatory in Ireland to carry out testing other than where a listed disease is suspected/ confirmed or where "increased mortality" remains unexplained after investigation, additional testing is carried out in Irish fish-farms as a voluntary measure.

The Institute submitted that refusal to provide access to the withheld information is justified on the grounds of article 8(a)(ii) and 9(1)(c), even after applying a public interest test.

The Institute's argument for refusal under article 8(a)(ii)

The Institute maintains that the withheld information was provided voluntarily by Marine Harvest, which refused to consent to disclosure because it would adversely affect its interests on the basis of commercial confidentiality.

The Institute's argument for refusal under article 9(1)(c)

The Institute submitted that the withheld information is confidential in nature: it said that there was an express understanding that the communication was for a restricted purpose. The Institute submitted that such information is subject to an equitable duty of confidence that is recognised in Irish law, and cited my predecessor's acceptance of this proposition in her decision in case CEI/08/0001(Hill of Allen Action Group and Kildare County Council). The Institute also submitted that Marine Harvest informed it that "site specific health and mortality information is commercially sensitive in situations where they share the water body with other users".

The Institute's public interest test

The Institute recognised that there may be a public interest in having access to information about the presence of disease on a salmon farm in a given waterbody. Against this, it listed the following considerations:

1. Animal diseases are a normal occurrence in the farming of terrestrial and aquatic animals.

2. There are no public health issues linked to the presence of diseases that occur in farmed fish in Ireland: those diseases are not communicable to humans.

3. Any mortalities which occurred were handled in accordance with the Animal By-Products Regulations and there were therefore no environmental concerns in relation to the disposal of carcasses.

4. If the information at issue were to be released, it might result in negative consequences for the operator, and the industry would be very reluctant to provide (and "it is likely that they will not provide") voluntary information in the future. If this were to occur the Institute would not have a full picture of the health status of the industry and would be less able to monitor changes in fish disease status.

In light of the above considerations, the Institute concluded that the public interest in the industry continuing to voluntarily provide information on non-listed diseases outweighed the public interest in disclosure.

The Appellant's position

In a submission to my Office, the appellant set out his reason for believing that the Institute was not justified in refusing his request. He did not challenge the Institute's assertion that it held information relating to a single site only.

He submitted that the Institute's assertion that the information at issue had been voluntarily supplied "may not be true" because "fish-farm operators are obliged under article 26 of Council Directive 2006/88/EC to notify the competent authority about the occurrence of high fish mortalities". Furthermore, he argued, operators will not know whether any increased mortality is due to a listed disease until test...