0103 - FOI

04 July 2023
Dear Mr Glover,
Thank you for your request for information about the results of the independent testing of
Inshore Vessel Monitoring System (I-VMS) devices, which we received on Tuesday 6 June
2023. Within your request, you asked for the following information:
‘I am making a formal request for a copy of documents regarding the results of the
Independent I-VMS testing information and communications with the four approved
I-VMS suppliers and GMV (the independent testers).
This is to include:
• Internal MMO emails, memo, drafts and notes relating to I-VMS suppliers,
from the date the Independent I-VMS testing results were published on
24/02/23 until today 06/06/23.
• Correspondence with GMV relating to the results of the tests and any follow
up correspondence with GMV after meetings with the I-VMS suppliers, from
the date the Independent I-VMS testing results were published on 24/02/23
until today 06/06/23.
• Letters, emails or other correspondence with I-VMS suppliers after the
Independent I-VMS testing results were published on 24/02/23 until today
06/06/23.’
We are dealing with your request under the Environmental Information Regulations 2004
(EIR) rather than the Freedom of Information Act 2000 (FOIA). In reaching this decision
we have considered the definition of environmental information as defined within the EIR.
Is the requested information environmental?
Regulation 2(1) of the EIR defines environmental information as being information 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 referred to in (a);
(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 (a)…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 (c); and
(f) the state of human health and safety, including the contamination of the food chain,
where relevant, conditions of human life, cultural sites and built structures inasmuch
as they are or may be affected by the state of the elements of the environment
referred to in (a) or, through those elements, by any of the matters referred to in (b)
and (c);
The information in question is on the testing of I-VMS devices. I-VMS devices monitor
inshore fishing activity to help improve the management and sustainability of our marine
environment, ensure proper fishing practices and prevent illegal fishing to help protect and
enhance the livelihoods of fishers.
Therefore the Marine Management Organisation (MMO) considers that this information is
information both directly on a measure having impact on the marine environment (or, more
precisely in this case, preventing an impact on the marine environment).
The information you requested is being withheld as it falls under the exceptions in
Regulation 12(4)(e) and 12(5)(e) of the EIR.
In applying these exceptions, MMO has had to balance the public interest in withholding
the information against the public interest in disclosure. MMO’s detailed application of the
exceptions outlined above is set out below.
Regulation 12(4)(e) – Internal communications
Regulation 12(4)(e) of the EIR states that a public authority may refuse to disclose
information to the extent that the request involves the disclosure of internal
communications. Regulation 12(4)(e) is a class based exception so it is not necessary to
demonstrate prejudice or harm to any particular interest in order for it to be engaged.
However, regulation 12(4)(e) is subject to the public interest test, therefore where the
exception is engaged, MMO must also consider whether in all the circumstances of the
case, the public interest in maintaining the exception outweighs the public interest in
disclosure of the disputed information.
MMO considers that regulation 12(4)(e) applies to email chains, decision documents and
notes of meetings all produced by MMO.
The detailed decision documents, and notes of meetings are attached to the email chains
referred to above. Information contained within some of
documents produced by MMO, is based information provided by GMV, the independent
testing organisation commissioned by MMO. ICO guidance in relation to this states:
“…if information from external communication is later reproduced in
a separate internal communication, that separate communication is
internal, irrespective of the origin of the content.”
MMO is therefore satisfied that all the documents referred to above constitute an internal
communication in line with ICO guidance in relation to regulation 12(4)(e) and as such the
exception is engaged.
Consideration of the public interest test in application of Regulation 12(4)(e)
MMO acknowledges that regulation 12(2) of the EIR requires the public authority to apply
a presumption in favour of disclosure. This emphasis reflects the potential importance of
environmental information to the public.
MMO is also mindful of the public interest in transparency and accountability in how it
undertakes its work and acknowledges that there is an interest from the public in how it
makes decisions.
When considering resuests for information under EIR, MMO is required to take into
account that requests should be ‘applicant blind’ meaning that there is a requirement to
consider that release of any information would be to the wider public.
The information identified was prepared for internal decision making meetings. The
purpose of these meetings was to provide advice, scrutiny and discuss the results of the
independent testing commissioned by MMO and completed by GMV NSL. The information
provides the background to MMO’s decision making and how it should proceed with
the results of testing relating to the four supplier devices originally type approved under the
I-VMS project. MMO considers that releasing this information would not inform public
debate as it is focussed on internal discussions and decision making.
MMO considers that it is vital that it has a ‘safe space’ to assess and deliberate decisions
in a free and frank manner. Further, MMO is responsible for ensuring that all I-VMS
devices testing operated effectively, and in a way that aligns with the technical
specification outlined as part of the I-VMS project.
The need for a ‘safe space’ is strongest when the information relates to a ‘live’ matter, and
the information concerns internal deliberations that would reveal details of the I-VMS
project which if released could impact successful roll-out of devices. The roll-out process
continues and the project remains ‘live’ and as such release of the information would
materially impact this process.
MMO further considers that the disclosure of internal approval decisions would have a
‘chilling effect’ on its ability to progress with both current and future decisions and
discussions regarding the project. Disclosure would result in a loss of frankness and
candour in relation to continuing discussions about the I-VMS project which would damage
the quality of those discussions. This in turn, would lead to poorer decision making which
would directly affect I-VMS device roll-out and decision making in relation to this that will
impact fishers within the under 12metre fishing fleet. This, we argue, would not be in the
public interest as it would harm MMO’s position as the fisheries regulator within England
and how MMO effectively manages the public funds entrusted to it.
Having considered the arguments both in favour of disclosure and maintaining the
exception we dp attach some weight to disclosure due to regulation 12(2) and the
presumption in
favour of disclosure.
MMO is also mindful of the public interest in transparencyand accountability in how a
public authority undertakes its work and how it allocates public money.
However, MMO also acknowledges the need for a ‘safe space’ for internal deliberations
and the potential ‘chilling effect’ of disclosure of internal communications, and considers
that the timing of the request is a significant factor when balancing the public interest.
MMO has therefore concluded that as the I-VMS project remains ‘live’ and ongoing , that in
all the circumstances of the case, the weight of public interest is balanced in favour of
maintaining the exception.
Regulation 12(5)(e)
Regulation 12(5)(e) of the EIR provides that a public authority may refuse to disclose
information to the extent that its disclosure would adversely affect the confidentiality of
commercial or industrial information where such confidentiality is provided by law to
protect a legitimate economic interest.
The MMO is relying on regulation 12(5)(e) to withhold the following information which was
produced by third parties:
• Correspondence, including emails and letters between MMO, the four I-VMS device
suppliers, and/or GMV NSL relating to the details of independent testing of the four
I-VMS devices.
• Recoding, transcripts and notes of meetings between MMO, the four I-VMS device
suppliers, and/or GMV NSL relating to the details of independent testing of the four
I-VMS devices.
In it’s assessment of whether regulation 12(5)(e) is engaged, MMO is required tol consider
the following questions:
• Is the information commercial or industrial in nature?
• Is the information subject to confidentiality provided by law?
• Is the confidentiality required to protect a legitimate economic interest?
• Would the confidentiality be adversely affected by disclosure?
For clarity, if the first three questions can be answered in the positive, the final question
will automatically be in the positive because if the information was disclosed under the
EIR, it would cease to be confidential.
Is the information commercial or industrial in nature?
The information indeitified as held by MMO includes specific details relating to the function,
build and operability of suppliers I-VMS devices and as such we consider that this is both
commercial and industrial in nature. In addition, the information includes details regarding
the testing processes and methodology used by GMV NSL which MMO considers to also
falls within this category of information.
Is the confidentiality required to protect a legitimate economic interest?
MMO can confirm the information relates to specific detail relating to the design, build and
operability of supplier I-VMS devices. We argue that if the information were made public it
would be likely that suppliers would be placed at an unfairadvantage to potential
competitors who develop similar devices and who are not subject to the MMO’s I-VMS
project. This is because detailed information relating to the devices would be publicaly
available and used by potential competitors within this commercial marketplace.
MMO considers that disclosure of the this information would result in other third parties
gaining access to commercially valuable information which would harm the organisations
who had devices approved by MMO as part of the I-VMS project.
MMO also considers that disclosure of the information would adversely affect suppliers
ability to operate the market as it would allow other institutions and competitors to gain an
advantage by having sight of commercially sensitive information regarding their I-VMS
devices.
Regarding the fourth condition set out above, MMO argues that disclosure this information
into the public domain would inevitably harm the confidential nature of
that information, and would also harm the legitimate economic interests of the I-VMS
device suppliers and GMV NSL.
As the four tests have been satisfied the Commissioner finds that regulation 12(5)(e) is
therefore engaged.
Consideration of the public interest test in application of Regulation 12(5)(e)
As with Regulation 12(4)(e) under the EIR, when regulation 12(5)(e) is engaged MMO
must carry out the public interest test in order to decide whether the information should be
withheld. Under regulation 12(1)(b), the public authority can only withhold the information
if, in all the circumstances of the case, the public interest in maintaining the exception
outweighs the public interest in disclosing the information. Furthermore, under regulation
12(2), it must apply a presumption in favour of disclosure.
MMO accepts the general public interest in public authorities being transparent,
accountable and open to scrutiny. MMO also acknowledges that disclosure could increase
public awareness and add to public scrutiny of the I-VMS project.
MMO consider that in this case there is a significant public interest in respecting
confidentiality where it is protecting a legitimate economic interest and where disclosure of
the requested information would have adverse impacts on I-VMS device suppliers and
GMV NSL; negatively impact the relationship between MMO and the I-VMS device
suppliers; and undermine future relationships required to ensure successful delivery of the
I-VMS project.
MMO recognises and gives weight to the importance of accountability for spending public
money in implementing the I-VMS project.
However, MMO gives significant weight to preserving the principle of confidentiality and
the real risk of undermining its ongoing relationship with the remaining I-VMS device
suppliers and GMV NSL. MMO argues that it serves the public interest for there to be a
fruitful relationship in addressing the successful roll-out of I-VMS devices within the
English under 12metre fishing fleet, which will ultimately support in the delivery of sutainble
fisheries management. MMO considers that harm caused to the legitimate economic
interests of the I-VMS device suppliers and GMV NSL would ultimately not serve the public
interest.
The MMO’s decision is that the public interest in maintaining the exception outweighs that
in disclosure, and therefore it is correct to rely on regulation 12(5)(e) of the EIR to refuse to
provide the withheld information.
If you are unhappy with the way the MMO has handled your request for information, you
can request an internal review by writing to Access to Information Internal Reviews at
MMO, Lancaster House, Hampshire Court, Newcastle Business Park, Newcastle upon
Tyne, NE4 7YH or e-mail accesstoinformation@marinemanagement.org.uk.
If you remain dissatisfied with the handling of your request, you have a right to appeal at
the Information Commissioners Office (ICO). The ICO can be contacted at Wycliffe
House, Water Lane, Wilmslow, SK9 5AF. Tel 0303 123 1113 or
http://www.ico.org.uk/complaints. There is no charge for the internal review or making and
appeal to the ICO.
Yours sincerely
Laurie Rodwell
Service Exception Lead
Marine Management Ogranisation