0108 - FOI

3 August 2023
Dear Mr Glover,
Thank you for your requests for information, received by us on 5 July 2023. Within your request you specifically requested the following information:
• A copy of documents regarding the results of the Independent I-VMS testing information and communications with your company, Maritime Systems Ltd
• Including Internal MMO emails, memo, drafts and notes relating to Maritime Systems Ltd, from 04/04/22 until 05/07/23
• Correspondence with GMV relating to the results of the tests
• 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 05/07/23.
We note you requested that we deal with your request under the Freedom of Information Act 2000 (FOIA). Where a request made under FOIA relates to Environmental Information as per the definition of Environmental Information set out in the Environmental Information Regulations 2004 (EIR) then the request is exempt from FOIA under section 39 of the Act and falls to be managed under the EIR. As a result, we are dealing with your request under the Environmental Information Regulations 2004 (EIR) as we are required to do.
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 you have request is information on the testing of I-VMS devices, correspondence with supplier information and correspondence with test providers about those involved in the I-VMS project.
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 information requested is information concerning a measure having impact on the marine environment or, more precisely in this case, preventing an impact on the marine environment, which brings it within the definition of environmental information.
Does the information fall to be disclosed?
Requests for information under the FOIA and EIR regimes are both applicant and purpose blind. When determining whether or not to release information in response to a request, MMO has to consider the implications of making a disclosure to the public at large rather to the specific requestor for a specific purpose.
The information you have asked for is being withheld under the exception in Regulation 12(5)(e) of the EIR, some of the information is also being withheld under the exception in Regulation 12(5)(4) pf EIR.
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.
You have asked for:
• A copy of documents regarding the results of the Independent I-VMS testing information and communications with your company, Maritime Systems Ltd, and
• Including Internal MMO emails, memo, drafts and notes relating to Maritime Systems Ltd, from 04/04/22 until 05/07/23
This information is commercially confidential information relating to Maritime Systems.
You have asked for:
• 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 05/07/23.
This information is commercially confidential information relating to GMV NSL and to the other suppliers involved with the I-VMS project.
In its assessment of whether regulation 12(5)(e) is engaged, MMO is required to 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 identified 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 unfair advantage to potential competitors who develop similar devices and who are not subject to MMO’s I-VMS project. This is because detailed information relating to the devices would be publicly available and used by potential competitors within this commercial marketplace.
MMO considers that disclosure of this information would result in the public and 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 MMO finds that regulation 12(5)(e) is therefore engaged.
Consideration of the public interest test in application of Regulation 12(5)(e)
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 sustainable 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 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’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.
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.
MMO considers that regulation 12(4)(e) applies to email chains, decision documents and notes of meetings all produced by MMO.
You have asked for:
• Including Internal MMO emails, memo, drafts and notes relating to Maritime Systems Ltd, from 04/04/22 until 05/07/23
And within this are document which are internal communication in line with ICO guidance in relation to regulation 12(4)(e) and as such the exception is engaged for this documentation, in addition to the exception under 12(5)(e) as explained above.
Consideration of the public interest test in application of Regulation 12(4)(e) 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), MMO must apply a presumption in favour of disclosure.
MMO is 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. MMO accepts the general public interest in public authorities being transparent, accountable and open to scrutiny.
Some of the information requested 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 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.
Whilst there is a clear public interest in public authorities being transparent and accountable, the MMO considered the need for a ‘safe space’ for internal deliberations and the potential ‘chilling effect’ of disclosure of internal communications, and the timing of the request given this is still a live project, in all the circumstances of the case, the weight of public interest is balanced in favour of maintaining the exception.
We have noted that this request is very similar in nature to the request you made to us on 6 June 2023, in fact your request here is essentially a subset of that you requested under reference ATI3071. You will remember that our decision in relation to ATI3071 was to withhold that information from you, and you then requested we carried out an internal review into that decision.
Please note that making repeated request for the same information in close succession is likely to render new requests (for the same information) manifestly unreasonable. MMO is able to refuse to disclose information under Reg 12(4)(b) where the requests are manifestly unreasonable. Making a future request for the same information you have request in both this request and in request ATI 3071 is likely to be refused by us on this basis.
If you require any further advice or assistance, please contact me in the first instance.
If you are unhappy with the way MMO has handled your request for information, you can request an internal review by writing to 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 or complaint, you have a right to appeal at the ICO, 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