Case number: CEI/17/0051

Whether the Department was justified in refusing access to the stocking rates in the inspection reports for all marine and fresh water fin-fish farms for the three-year period preceding the appellant's request

 
06 December 2018
 
 
 

Background

 
In a request dated 11 July 2017, the appellant sought access to the Engineering Division Inspection check lists for all marine and fresh water fin-fish farms for the three-year period preceding the request.  The Department granted the request subject to the redaction, in pertinent part, of the stocking details in the reports concerned under section 9(1)(c) of the AIE Regulations.  The Department's decision notifying the appellant of its position on internal review was outside of the statutory period, however.  A belated appeal was then made to this Office on 18 December 2017, but I exercised my discretion to extend the appeal period under article 12(4)(b) of the Regulations in the circumstances.
 
I have now completed my review under article 12(5) of the Regulations.  In carrying out my review, I have had regard to the submissions made to date.  I have also had regard to:  the Guidance provided by the Minister for the Environment, Community and Local Government on implementation of the Regulations; Directive 2003/4/EC, upon which the AIE Regulations are based; The Aarhus Convention:  An Implementation Guide (Second edition, June 2014) [the Aarhus Guide] relating to the United Nations Economic Commission for Europe (UNECE) Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, which is more commonly known as the Aarhus Convention; and also the text of the Aarhus Convention itself.  
 

Scope of the Review

 
During the course of the review, the appellant confirmed that her appeal relates solely to the decision to redact the stocking rates from the inspection reports made available to her.  Accordingly, my review in this case is concerned solely with the question of whether the Department was justified in refusing access to the stocking rates in the inspection reports concerned.  For the sake of clarity, I note that any records that were created after the date of the original request do not form part of this review.  I also note that, while some of the reports include actual production data, which is distinguishable from standing stocking rates, production data is relevant to stocking rates and thus may be regarded as falling within the scope of the appeal.
 
Definition of "environmental information"
 
As noted, the AIE Regulations are based on Directive 2003/4/EC.  In line with Article 2(1) of the Directive, article 3(1) of the AIE Regulations defines "environmental information" as
"any information in written, visual, aural, electronic or any other material form on- 
(a) the state of the elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites including wetlands, coastal and marine areas, biological diversity and its components, including genetically modified organisms and the interaction among these elements,
(b)  factors, such as substances, energy, noise, radiation or waste, including radioactive waste, emissions, discharges and other releases into the environment, affecting or likely to affect the elements of the environment,
(c) measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements and factors referred to in paragraphs (a) and (b) as well as measures or activities designed to protect those elements,
(d) reports on the implementation of environmental legislation,
(e) cost benefit and other economic analyses and assumptions used within the framework of the measures and activities referred to in paragraph (c), and
(f) the state of human health and safety ... conditions of human life, cultural sites and built structures ...affected by the state of the elements of the environment...or through those elements, by any of the matters referred to in paragraphs (b) and (c)".
 
It is not in dispute for the most part in this case that the information at issue is environmental information.  Two objectors representing a number of farms suggested otherwise, however.  For the sake of clarity, I note that both fish farming and aquaculture inspections are activities affecting or likely to affect elements and factors referred to in paragraphs (a) and (b).  The stocking details provide information on these activities and is thus environmental information under paragraph (c) of the definition.  I also consider that the stocking rates, i.e. the numbers and weights of fish on fish farms, are themselves factors which affect or are likely affect the elements of the environment (e.g., water, landscape and natural sites) and thus also qualify as environmental information under paragraph (b) of the definition.  
 

Analysis and Findings

 
The grounds for refusal of a request for environmental information are set out in articles 8 and 9 of the AIE Regulations, but any proposed refusal is subject to the provisions of article 10 of the Regulations.  Article 10(1) states: "Notwithstanding articles 8 and 9(1)(c), a request for environmental information shall not be refused where the request relates to information on emissions into the environment".  Article 10(3) of the Regulations requires public authorities to consider each request on an individual basis and to weigh the public interest served by disclosure against the interest served by refusal.  Article 10(4) provides that the grounds for refusal of a request shall be interpreted on a restrictive basis having regard to the public interest.  I take article 10(4) to mean, in line with the Minister's Guidance, that there is generally a presumption in favour of the release of environmental information.  In addition, I note that article 10(5) clarifies, in effect, that a request should be granted in part where environmental information may be separated from other information to which article 8 or 9 applies.
 
The sole ground for refusal by the Department in this case is article 9(1)(c) of the Regulations.  Article 9(1)(c) allows a public authority to refuse to make environmental information available where disclosure of the information requested would adversely affect "commercial or industrial confidentiality, where such confidentiality is provided for in national or Community law to protect a legitimate economic interest".
 
The Department's position
In its submissions, the Department explained that the requested inspection reports were redacted to remove the stocking details, because this "information was deemed commercially sensitive".  The Department said that it considers the information to be commercially sensitive "irrespective of whether the companies and respective sites are operational or not" because of the industry-wide nature of the request covering a number of years.  The Department noted that "aquaculture operators have indicated their reluctance to release this commercially sensitive information in the past".  While stocking information for one-off sites may have been released in previous cases, the Department is particularly concerned in this case, because the request "applies to the companies operating over multiple sites and the industry as a whole over a number of years, which is considered as commercially sensitive, due to potential for commercial advantage from competitor operators".  The Department referred to section 36 of the Freedom of Information (FOI) Act 2014 as providing the necessary protection for commercial or industrial confidentiality in national law. 
 
In addition, the Department stated that the stocking details do not relate to emissions into the environment.  While it agreed with the view taken by this Office in previous decisions that there is a public interest in the level of monitoring of the fin-fish industry by the Marine Engineering Division, it suggested that the release of the reports subject to the redaction of the stocking information serves this public interest to an adequate degree.
 
The appellant's position
The appellant emphasised at the outset of her submissions that she has a right of access to the requested information and is not required to justify her request.  She argued that the Department has not shown that article 9(1)(c) applies to the redacted stocking details sought.  In her view, the Department has not identified any national or Community law that protects a legitimate economic interest which applies to the redacted stocking details, and she rejected any suggestion that the protection provided by section 36 of the FOI Act 2014 to commercially sensitive information is of any relevance in this case.  She also considers that the Department has not identified any basis for finding that disclosure of the requested information would adversely affect commercial or industrial confidentiality.  
 
Without prejudice to the foregoing, the appellant also argued that there is a very strong public interest to be served in releasing the stocking details requested.  In support of her position, she referred to a report by a senior official in the Department relating to an alleged breach of licence for over-stocking.  The report highlights the importance of post-licensing monitoring and compliance.  While the report indicates that serious issues have been raised about the licensing regime, the appellant stated that "it is important that ENGOs and the public can access the stocking details in order to ensure that the current licensing system is being adhered to notwithstanding the flaws that have been identified".  She also suggested that transparency in relation to the stocking details facilitates the public in tracking disease.
 
Objections & other responses by the affected companies
In August 2018, my Office notified over 30 affected fish farms of the review for the purpose of giving them the opportunity to make submissions in relation to the information at issue which may affect their interests.  Where it was apparent that no relevant redactions were made from an inspection report, however, the fish farm concerned was not regarded as an affected party to the review.  In order to ensure that no relevant farm was overlooked, my Office used the contact details for the farms that were helpfully provided by the Department based on the licensing information that it holds, but this resulted in a number of redundant notifications and thus some confusion, because some of the fish farms were in fact no longer in business or were part of another fish farming company.  Each letter of notification advised that, if no response were received within a three-week period from the date of the letter, it would be assumed that the company concerned had no objection to release.
 
Written submissions and other responses were ultimately received from ten representatives on behalf of affected fish farms.  One farm owner stated that he had no objection to the release of his farm's stocking rates "in principle", but he provided background on the nature of his own fish farming operations and also explained his view of what he regards as the non-scientific, market-driven agenda of certain environmental non-governmental organisations (ENGOs).  While my Office explained that any perceived motive for a request is considered to be irrelevant to my review, the farm owner maintained that his submissions may be relevant to the public interest.  He noted that his farm operates as a research unit as well as a commercial enterprise and that its stocking rates are estimates only.  He explained:  "the densities as recorded by the Department of the [M]arine represent only the densities, at the time of inspection and can be misleading when considering how the densities of different species can vary on a seasonal basis".  The farm owner confirmed that he is in favour of openness and transparency for all parties involved in environmental matters, including ENGOs, and that he accepts that his farm's information may be released.
 
Inland Fisheries Ireland (IFI) stated in a written submission that it does not have any objection to the release of the information at issue affecting its interests.  Another company responded by telephone to say that it had no objection as it had "nothing to hide".
 
Six sets of statements of objections were received but three of these sets of statements were made on behalf of multiple farms.  In summary, it is position of the objectors that the information at issue is confidential and commercially sensitive and should not be released in the public interest.  In addition, one company stated that release of the details "creates prejudicial consequences for us in a future legal action, possibly altering the course of justice for us", but no further details were provided to explain this claim.
 
One large company representing at least three of the notified fish farms suggested by telephone that the information at issue may be taken out of context due to problems with the regulatory regime and the manner in which it is administered by the Department.  In its written submissions, however, the company set out why it regards the stocking details as commercially sensitive under sections 36(1)(b) and (c) of the FOI Act, which in its view have been incorporated by article 8(a)(iv) of the Regulations.  It noted that the information relates to "supply and demand" and said that fish weights in particular have a strong influence on the market price.  It acknowledged that some of the relevant information may be historical in nature, but it stated that the data "still reflects the potential and future supply to the market and hence is of key commercial value" to the company and its competitors.  It also suggested that disclosure of the information concerned would give a significant and/or unfair competitive advantage to not only its competitors but also its customers in negotiations and competitive sales situations.  
 
The company acknowledged the public interest in fish farming being open to scrutiny.  However, it submitted that there is also a public interest in maintaining the confidentiality of information relating to the commercial activities of private entities.  In its view, the public interest in this case weighs in favour of the refusal of its commercially confidential information, as the public interest in fish farming is adequately satisfied by the information already released by the Department.  It added:
"Fin-fish farms are required by the licensing protocols to submit annual benthic surveys (Protocol No. 1) and these surveys are evaluated by the Marine Institute as technical advisors to the Department.  This data represents the ultimate and true measure of local environmental degradation, if such should occur.  Without prejudice to [an earlier point], the public interest in fish-farming being open to scrutiny would be better served by the release of such information rather than the release of the relevant information."
 
One company specialising in organic farming also highlighted the competitive environment in which it operates and argued that information about its production and volumes would prejudice its market share and its strategy in the markets it pursues.  It stated that, as an organic farm, it is regularly monitored to ensure that its production meets the exacting standards of various national and European agencies.  It suggested that the commercially sensitive information held by these agencies should be protected in the circumstances.  
 
Other companies, including operators that did not claim to be involved in organic farming, also argued that stocking details are "market sensitive information", the release of which could be harmful or prejudicial to commercial negotiations and other legitimate economic interests.  Similarly, it was suggested that the rigorous regulatory and licensing standards are sufficient to satisfy the public interest in light of the information that has been released and that information that could benefit their competitors and be harmful to their interests should continue to be withheld.  One company stated:
"Furthermore, the information is given by us for national and industry development purposes not to be used against us.  Its release therefore would be perverse and against our right of natural justice.  The industry has always understood a confidentiality to it and this would be in breach of that in spirit and in practice.  Furthermore, the release of such data would lead to implied interpretations that would result in further defamation of our business."
 
A representative of a number of fish farms also submitted that releasing stocking information on an industry-wide basis covering a three-year period could facilitate anti-competitive behaviour in violation of competition law.  In support of his submissions, he presented a document from the Competition and Consumer Protection Commission (CCPC) advising businesses that sharing sensitive business information such as sources of supply and levels of production and supply could be indicative of cartel behaviour.
 
In addition, a representative from the Irish Farmers' Association (IFA) contacted my Office by telephone to express concerns on behalf of the fin fish farmers.  The concerns expressed were, however, general in nature and again related to the perceived motive for the request, particularly in light of the industry-wide approach of the request.  
 

Findings

I note that at the outset that I find no basis for concluding that article 8(a)(iv) of the AIE Regulations applies; it simply has not been shown that disclosure would adversely affect the confidentiality of any relevant "proceedings" where such confidentiality is protected by law.  I also note that insufficient information has been presented to show that disclosure of any stocking rates would adversely affect the course of justice (including criminal inquiries and disciplinary inquiries) and thus article 9(1)(b) has also not been shown to apply.  In addition, I note that it has not been argued, nor do I find, that the stocking rates in and of themselves relate to information on emissions into the environment.
 
In Case CEI/17/0005 (SLR Environmental Consulting (Ireland) Limited and Offaly County Council), available at www.ocei.ie, I observed that the AIE Regulations do not permit the refusal of an AIE request on the ground that the requested information is "commercially sensitive".  Article 9(1)(c) of the AIE Regulations, however, is a discretionary ground for refusal that may apply where:
 
the information at issue is commercially or industrially confidential;
the confidentiality of the information is provided for in national or Community law to protect a legitimate economic interest;
disclosure of the information would adversely affect the confidentiality.
 
In Cases CEI/17/0045 (Stephen Minch and the Department of Communications, Climate Action and Environment) and CEI/17/0053 (Mr. Darragh McDonagh and the Galway Harbour Company), again available at www.ocei.gov, I accepted that section 36 is a relevant national law that provides for the protection of commercially sensitive information.  Section 36(1) provides in pertinent part that a request shall be refused if the record concerned contains "(b) financial, commercial, scientific or technical or other information whose disclosure could reasonably be expected to result in a material financial loss or gain to the person to whom the information relates, or could prejudice the competitive position of that person in the conduct of his or her profession or business or otherwise in his or her occupation, or (c) information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates."  
 
The essence of the test in section 36(1)(b) is not the nature of the information, but the nature of the harm which might be occasioned by its release.  I note that the standard of proof is relatively low under sections 36(1)(b) and (c) in that the mere possibility of prejudice to the competitive position, or to the conduct or outcome of negotiations, of the person concerned is sufficient.  (The first part of section 36(1)(b) sets a higher test, however.)  However, in the High Court case of  Westwood Club v The Information Commissioner [2014] IEHC 375, Cross J. held that it is not sufficient for a party relying on section 36(1)(b) to merely restate the provisions of the section, list the documents and say that they are commercially sensitive.  A party opposing release should explain why disclosure of the particular records could prejudice its competitive position.  Accordingly, as Information Commissioner, I take the view that, in invoking "prejudice", the damage which could occur must be specified with a reasonable degree of clarity. 
 
Moreover, I note that the term "legitimate economic interest" is not defined in the Regulations or the Directive, but the Minister's Guidance states that "the public authority must satisfy itself that real and substantial commercial interests are threatened".  The Aarhus Guide says that that "[l]egitimate economic interest also implies that the exception may be invoked only if disclosure would significantly damage the interest in question and assist competitors".  Considering the term in the context of confidentiality provided for by law, and having regard to the requirement to interpret grounds for refusal on restrictive basis in light of the public interest, I am satisfied that it necessary to show, at a minimum, that disclosure would result in some harm to the economic or commercial interest of the party seeking protection by way of confidentiality.  I do not consider that a general or speculative claim of harm to a company's competitive position is sufficient.
 
I recognise that the fish farming industry is concerned about the heightened level of scrutiny demanded of it by the public because of perceived threats to the environment arising from such matters as overstocking, fears of which may or may not be exaggerated.  However, it seems to me that unnecessary secrecy will simply breed further distrust that is ultimately harmful to the legitimate economic interests of the industry as a whole.  In this case, the stocking information at issue is at least three years old.  The objections of the third parties primarily relate to what the details may reveal about their production levels or supply capabilities, but apart from the exceptions discussed below, the stocking rates do not represent production or supply levels but rather an estimate of the amount of fish on site on the particular day of the inspection.  The figures are generally approximations, and while they are precise in some reports, the Department admitted that inspectors do not carry out an actual count of the fish in the cages or the ponds on the day of the inspection, which is not surprising.  The reports do not, for the most part, include any details regarding the sources of supply or costs involved.  I also note that the licensing limits, where recorded, and commentary have already been released.  Thus, the authorised amounts of stock for each farm, where recorded, and comments on the issues arising from the inspection are effectively in the public domain.  In the circumstances, I am not satisfied that disclosure of the information in records about the standing stocking rates (e.g., the figures appearing in the "Actual Standing Stock" columns of the reports or comments that may indicate general stocking rates such as the redaction made from the "Overall Assessment" in the report dated 2/7/15 regarding File No. T06/202 AQ199) would be harmful to any commercial or economic interest that is protected by law.
 
However, some of the reports provide actual production data for a period of time preceding the inspection, including details regarding sourcing and exports in certain cases.  While I do not believe that the appellant meant to make a distinction when she limited her appeal to the redacted "stocking rates", I note that there is in fact a distinction between standing stock and actual production.  I accept that production data would be commercially valuable in the competitive fish farming market and that details regarding suppliers, actual supply into the market, and destinations would be key factors in determining sales prices and market share.  I also accept that the information is commercially confidential and that disclosure would be harmful to the commercial interests of the farms concerned.  Accordingly, subject to article 10(3), I find that article 9(1)(c) applies to the actual production data provided in any of the reports relating to the farms or companies which have objected to the release of their details.
 
In considering the public interest served by disclosure under AIE, it is important to have regard to the purpose of the AIE regime as reflected in Recital (1) of the Preamble to the Directive:  "Increased public access to environmental information and the dissemination of such information contribute to greater public awareness of environmental matters, a free exchange of views, more effective participation by the public in environmental decision-making and, eventually, to a better environment."  Thus, the AIE regime recognises a very strong public interest in maximising openness in relation to environmental matters so that an informed public can participate more effectively in environmental decision-making.  I also consider that there is a very strong public interest in openness and accountability in relation to how the Department carries out its regulatory functions in relation to the aquaculture industry, including its oversight of the licensing conditions that fish farm operators are obliged to abide by.  I further note that, as a general matter, I do not accept that the possibility of information being misunderstood is a good reason to refuse access to environmental information under the AIE regime.  Thus, even if I were to accept that the standing stocking rates fell within the ambit of articles 9(1)(c), I would find that the public interest served by disclosure outweighs any identifiable interest served by refusal.  However, I consider that the release of the standing stocking rates together with the information in the reports that has already been released serves the public interest in openness and transparency to a large extent.  In the circumstances, I consider that the public interest served by disclosure of the actual production data does not outweigh the legitimate economic interests of the third party objectors that I accept are protected by law.
 

Decision

 
Having carried out a review under article 12(5) of the AIE Regulations, I vary the Department's decision in this case as follows:
 
I find that the Department was not justified in refusing access to the information in the inspection reports about the standing stocking rates in the inspection reports concerned and direct the release of this information;
I find that the Department was justified under article 9(1)(c) of the Regulations in refusing access to the actual production data provided in any of the reports relating to the farms or companies which have objected to the release of their details.
 

Appeal to the High Court

 
A party to the appeal or any other person affected by this decision may appeal to the High Court on a point of law from the decision. Such an appeal must be initiated not later than two months after notice of the decision was given to the person bringing the appeal.
 
 
 
 
 
 
Peter Tyndall
Commissioner for Environmental Information