Request for fisheries catch reports
Section 9(2)(ba)(i) OIA applied—information compelled under an enactment—difficulties in monitoring compliance meant there was a strong reliance on accurate self-reporting—release would be likely to prejudice the future supply of accurate information from the commercial fishing community—future supply in the public interest to ensure the effective management of the fisheries resource—no public interest override—good reason to withhold
A requester sought the catch records and accidental loss reports for a commercial fishing vessel for the last ten years. The Ministry for Primary Industries (MPI) refused the request under section 9(2)(b)(ii) of the Official Information Act (OIA), on the basis that release would be would be likely unreasonably to prejudice the commercial position of the fisher. The requester complained to the Ombudsman.
The Ombudsman requested a copy of the information at issue and an explanation of the reasons for withholding.
MPI sought to rely on both the confidentiality and commercial withholding grounds in the OIA. It explained:
Although reporting is compelled by statute, MPI is largely reliant on the honesty of the reporting provided by commercial fishing operators. There is a real risk that public release of catch reports would not only prejudice the commercial position of the provider [by revealing a commercial operator’s fishing knowledge and strategies] but would lead to an erosion in the quality of the information provided by the industry. To ensure the effective management of the fisheries resource, it is in the public interest that accurate information should continue to be provided to MPI.’
MPI consulted the fisher, who opposed release and expressed strong concerns about the impact of disclosing the information on its commercial position.
The Ombudsman decided that the confidentiality withholding ground was most relevant to MPI’s concerns.
Section 9(2)(ba)(i) of the OIA applies when releasing information ‘which any person has been or could be compelled to provide under the authority of any enactment’ would be likely to prejudice the supply of similar information, or information from the same source, and it is in the public interest that such information should continue to be supplied.
The Ombudsman was satisfied that the information at issue was compelled under the authority of an enactment. Section 189 of the Fisheries Act 1996 requires fishers to keep and provide records and returns to MPI’s Chief Executive, as required under regulations (the Fisheries (Reporting) Regulations 2001). This includes catch returns and accidental loss reports (known in the regulations as fish returned to the sea, abandoned at sea, or accidentally lost at sea).
The Ombudsman considered whether release would be likely to prejudice the future supply of similar information, notwithstanding the statutory obligation to supply it.
He noted that Ombudsmen have investigated a number of cases involving the withholding of catch data. While each case is considered on its merits (there can no ‘class withholding’ of information), previous cases highlight useful background information about the history of the way this information has been treated by the Ministry, the Courts, the industry and the legislature.
Previous fisheries legislation restricted disclosure of return information allowing only for particular exceptions. There was a policy decision to rely on the OIA when the Fisheries Act 1996 replaced the earlier legislation but the perceived sensitivity of the information in fishing returns remained. While there are no specific restrictions under the Fisheries Act, the courts themselves have been cautious in the disclosure of return information. For example in Simunovich Fisheries Limited v Chief Executive of Fisheries, France J held that the Ministry could disclose information that had been provided before the 1996 Act came into force but imposed various conditions to reflect the sensitivity of the information. This was in the context of an inquiry established under the State Sector Act 1988, and the conditions were:
This disclosure is on the basis that, when conducting any part of the hearing that involves a disclosure of the returns…, that part of the hearing shall be in the presence only of the party whose returns … are being considered and that party’s counsel, the first and second defendants and counsel, and counsel for the third defendants, any expert retained as above, any relevant witness and the stenographers to the Inquiry unless the Inquiry considers the presence of additional persons is necessary to comply with the principles of natural justice. A separate transcript of such referring shall be kept.
This judicial discussion helped to substantiate MPI’s view that the information at issue was regarded by the suppliers as commercially sensitive.
While fishers are required to provide the information under statute, and there are some systems in place to check reporting, the inherent difficulties associated with monitoring compliance meant the Ministry ultimately relied on fishers accurately self-reporting accidental losses.
Given the nature of the information and the difficulties in monitoring compliance with reporting obligations, the importance of trust between the Ministry and fishers was clear. If the Ministry released the information at issue in this case, there was a real risk of a consequential prejudice to the future supply of accurate information from the commercial fishing community. It was also clearly in the public interest that fishers supply accurate returns, including accidental loss reports, to ensure the effective management of the fisheries resource.
The Ombudsman concluded that section 9(2)(ba)(i) applied to the information at issue.
Section 9(2)(ba)(i) is subject to a public interest test. This means the need to withhold must be balanced against the countervailing public interest in release. If the countervailing public interest weighs more heavily, the information must be released. If not, it can be withheld.
The Ombudsman identified a public interest in the accountability of the Ministry for its role in ensuring that valuable resources are not being wasted by commercial fisheries. However, given the nature of the information at issue and the strength of the interest in protecting the relationship of trust and cooperation in order to ensure accurate reporting, the Ombudsman concluded that the public interest in disclosure did not outweigh the need to protect the information. The need to protect the information served the same core public interest of avoiding the waste of fish.
The Ombudsman formed the opinion that section 9(2)(ba)(i) of the OIA provided good reason to withhold the information at issue.
This case note is published under the authority of the Ombudsmen Rules 1989. It sets out an Ombudsman’s view on the facts of a particular case. It should not be taken as establishing any legal precedent that would bind an Ombudsman in future.
 Simunovich Fisheries Ltd v Chief Executive of the Ministry of Fisheries & Ors (HC, Wellington, CP 36-03, 11 June 2003, France J).