0109 - FOI

3 August 2023
Dear Mr Glover,
Thank you for your requests for information regarding the numbers of I-VMS devices installed on 12 metre and under fishing boat in England, received by us on 5 July 2023. Within your request you specifically requested the following information:
• Number of boats with I-VMS installed in 2022 and 2023 to the present date.
• How many I-VMS supplied by each of the original 4 approved suppliers.
• Breakdown of how many I-VMS installed in the under 6m, under 8m, under 10m and under 12m categories.
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 in as
much 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 asked for relates to the number of I-VMS devices fitted within the under 12m fleet. 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 applicant and purpose blind. When determining whether or not to release information in response to a request the 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 exceptions in Regulation 12(5)(f) and 12(5)(e) of the EIR.
Regulation 12(5)(f)
Regulation (12)(5)(f) provides that a public authority may refuse to disclose information for the purpose of protecting the interest of persons who provide information to a public authority in circumstances where they were not under, and could not have been put under, any legal obligation to supply that information to the authority, in circumstances such that that or any other public authority is entitled apart from these Regulations to disclose it. All the information you request was provided to the MMO by persons who were not under and could not be put under a legal obligation to provide this information to the MMO. It was provided only for use by the MMO as part of the roll out of I-VMS devices across the under 12m fleet and in order to allow the MMO to monitor and manage the roll out effectively and to process the associated grant payments. This information was gathered as part of the project and was to be used only for the purpose of the project. Consideration the public interest test in the application of Regulation 12(5)(f) 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 accepts the general public interest in public authorities being transparent, accountable and open to scrutiny. MMO also acknowledges that the disclosure of this information could increase public awareness in the progress of the I-VMS project and add to public scrutiny of the I-VMS project.
There is also significant public interest in respecting confidentiality of information provided to a public authority on a purely voluntary basis for use for a specified purpose. If MMO were to release of information provided to MMO on this basis, it would result in suppliers and fishers failing to provide this information to MMO which in turn would impact MMO’s ability to monitor and manage the roll out of I-VMS effectively to ensure I-VMS is in place across the fleet at the point that the legal obligation to use I-VMS comes into force. Disclosing this information would also undermine MMO credibility within a sector that it regulates, again this is clearly not in the public interest.
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. MMO also considers that the exemption under Regulation 12(5)(e) also applies to the request to be provided with
• How many I-VMS supplied by each of the original 4 approved suppliers
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?
How many units have been supplied in the fleet broken down to supplier level is commercial information in respect of each supplier as it talks to customer bases and potential market shares of the U12 fleet each supplier has captured.
Is the information subject to confidentiality provided by law?
This information is commercially confidential material provided to MMO under an obligation of confidence the confidentiality of which is provided by law.
Is the confidentiality required to protect a legitimate economic interest?
How many devices sold into a particular market is information which, release of this information into the public domain, releases information about each supplier’s potential market share of the u12 fleet could disadvantage suppliers within this commercial
marketplace. The 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. The release of the information would harm the legitimate economic interests of the I-VMS device suppliers.
As the four tests have been satisfied regulation 12(5)(e) is therefore engaged.
Consideration the public interest test in the application of Regulation 12(5)(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 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; 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 considers that disclosing this information could harm the legitimate economic interests of the I-VMS device suppliers, and their ability to remain within the I-VMS project, it is clearly not in the public interest for this to happen.
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 information about individual suppliers.
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