Global Alliance Against Industrial Aquaculture v. Scottish Ministers, 26 November 2012 read decision
An interesting and robust decision from the Scottish Information Commissioner. An NGO (just look at the tin) asked the Scottish Ministers for information about seal culling licensed by them. The Scottish Ministers did not provide all the information sought; they said which companies had received the licences, and the total number of seals killed, but did not say who killed how many seals where – thus, doubtless, stymieing any focussed debate and engagement by the NGO on the justification for the killings. The industry’s position appears to be that such shootings only took place against occasional rogue seals.
It was common ground that the withheld information was environmental information within the Regulations – effectively the same north and south of the border. The Ministers relied on two exceptions – that provision of the information might affect public safety (reg.12(5)(a) in Scotland or reg.13(5)(a) in England) or the protection of the environment to which the information relates (ibid.(5)(g)). Their case was that production of the information would lead to direct action being taken (not by GAAIA) but by others against the sites involved or individuals involved in their operation. The material relied upon by the Ministers in respect of direct action was (a) an aborted mass slaughter of Orkney seals in 1978 (yes, 1978) – nothing to do with salmon farming (b) the confrontation of a Costa Rican ship in Guatemalan waters concerning shark finning and (c) a Canadian seal cull and (d) recent direct action against whaling. Example (a) was a tad ironic – this cull was in the end cancelled for public safety reasons – the public safety in question being that of the protesters who had put themselves in the line of fire between cullers and seals.
The IC took a pretty firm line in response to this. No, the Ministers accepted, the release of information about certain past salmon farm culls had not led to any direct action. And all GAAIA was after was more information about the past, in part to be able to inform customers whether or not seals had been killed in the farming of this product (this is perhaps closer to the nub of the case, which the cynic might infer was all about reputation management of the fish farmers as doubtless conveyed to Ministers). The IC said that the Ministers needed to demonstrate that disclosure would or would be likely to prejudice substantially public safety – not simply a remote or hypothetical possibility of such harm. The examples of direct action provided by Ministers were “tenuous and bore little relation to the issues or situations under consideration…”
Indeed, the IC was “disappointed that the Ministers continue to rely on general arguments to explain why they considered the information to be exempt under regulation 10(5)(a), without providing evidence to support their conclusions in the specific circumstances of this case.”
The harm to the environment exception was even more tenuously supported by Ministers. Protestors might damage fish farm cages, thus causing fish to escape and thus potentially impact on wild populations. Seals might also damage those cages, if companies were not allowed to shoot them because of protests. Not much credence was given to this by the IC.
Standing back from the decision, and the rather flimsy material advanced by Scottish Ministers, it demonstrates just how difficult these cases must be to decide in practice. They are meant to be morally neutral – it is not supposed to matter why someone wants the information. If the information sought falls within the rules, then it is for the public authority to justify refusal of disclosure, and to do so on objective grounds. But this process gives rise to the sort of decision here – how robustly should one look at the possibility of the actions of third parties? And to what degree should Ministers weigh all this up? Are they to take account of law enforcement or the ability of salmon farmers to look after themselves – in return for an open debate on whether, and in what circumstances, seals should be killed. Let us assume that the data show that three salmon farmers, close to each other and in habitats of similar seal attractiveness, killed nil, 20 and 500 seals respectively over a given year. Why should not the last two have some explaining to do, not simply to Ministers but to the public and its market generally?
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