DFO secrecy was against public interest, says Information Commissioner – Environment

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Canada: DFO secrecy was against public interest, says Information Commissioner

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For nearly a decade, the Department of Fisheries and Oceans (DFO) suppressed research indicating that a foreign virus found at fish farms on the British Columbia coast was likely deadly to wild salmon populations in endangered – a decision that the Information Commissioner of Canada ruled illegal.

In April 2012, a DFO scientist submitted a research report documenting the first detection of Aquatic Orthoreovirus (AVP) in British Columbia. The report noted that PRV, not environmental factors, likely caused yellowing and death in farmed Chinooks. The research had important implications for the health of endangered wild chinook, the preferred food source of endangered killer whales.

While internal communications indicated that the DFO scientist conducting the research intended to submit the research for peer review and publication, DFO refused to allow publication and refused to provide the research to First Nations when they requested it.

The research remained swept under the rug – until Wild First, a non-profit organization dedicated to protecting wild Pacific salmon populations, managed to obtain a copy.

In 2017, DFO regulations on PRV in fish farms led to protests and fish farm occupations. In 2015 and 2019, the Federal Court found DFO’s PRV regulations to be illegal. A third application for judicial review is currently before the Federal Court.

Subsequent research confirmed that PRV had been imported into British Columbia from the North Atlantic, likely through fish farming. Later research also confirmed that PRV causes the endangered Chinook’s red blood cells to rupture. en masse.

Freedom of Information Request Denied

Wild First filed a freedom of information request in 2018 for a copy of the PRV research, but was denied. The organization then filed a complaint with the Information Commissioner, alleging that DFO was unlawfully withholding the report under the Access to Information Act.

DFO said it was justified in withholding the report, citing various exemptions under the Act regarding confidential third-party information, the possibility of financial impact on a third party, and government information obtained from the research. The Information Commissioner rejected each of these arguments – and went further, suggesting that DFO secrecy was against the public interest.

Secrecy flouted the public interest

The Information Commissioner cited subsection 20(6) of the Act, which requires institutions to exercise reasonable discretion when deciding to disclose information for reasons of public health or public safety, or to protect the environment, when two conditions are met:

  • disclosure of the information would be in the public interest; and

  • the public interest in disclosure clearly outweighs any financial impact on the third party, any harm to the security of the third party’s structures, networks or systems, or its competitive position, or any interference in its contractual or other negotiations.

Although DFO stated that “none of the information withheld under Section 20 could reasonably relate to public health, safety or environmental protection”, the Information Commissioner rejected this argument, noting that DFO’s position was undermined by other scientific research highlighting the dangers PRV poses to wild Pacific salmon populations.

The Information Commissioner cited studies that found that high levels of PRV on salmon farms posed “more than minimal risk” to wild Pacific salmon, and that PRV-1 is now “an agent disease in critically endangered wild Pacific salmon populations”.

The commissioner also noted that the federal government’s Standing Committee on Fisheries and Oceans had raised concerns about the spread of pathogens to wild salmon from fish farms and recommended that DFO “improve its data, including making information publicly available without the need for approval from industry and business stakeholders” in a June 2021 report.

For these reasons, the Information Commissioner ruled that even if DFO had met one of the requirements of the Act regarding the non-disclosure of research, it[traduction]”would still have the onus on DFO to consider disclosure under subsection 20(6), taking into account all relevant factors.”

In the end, Wild First prevailed. The Information Commissioner recommended that the Minister of Fisheries, Oceans and the Canadian Coast Guard send copies of the PRV report to Wild First and the Registrar of the Information Commissioner. Newly appointed Minister Joyce Murray accepted the recommendation and released the draft document and research report.

The publication of the suppressed research made headlines nationally in the Globe and Mail and internationally in the Guardian.

Wild First Advisor

MLT Aikins was pleased to act as legal counsel to Wild First in this work. Wild First advocates for land-based fish farms to protect wild Pacific salmon populations. The organization enjoys the support of 102 First Nations in British Columbia – including ‘Namgis the First Nation, which overcame a previous dispute with DFO over PRV testing, and reached an agreement to continue monitoring fish farms on its territories in 2019. Learn more about Wild First.

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

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