Case number: OIC-117817-M5N2C9
23 January 2023
In a request dated 3 November 2021, the applicant, through his representative, sought access to copies of European Community logs submitted by the owner of a named fishing vessel between February and November 2019. In a decision dated 25 November 2021, the SFPA refused access to the 28 records it identified as relevant to the request, under sections 35, 36 and 37 of the FOI Act.
The applicant sought an internal review of that decision, wherein he said that if the SFPA still holds to the view that there are commercial sensitivity considerations it might consider proportionate redactions. He said he was not concerned with the amount of various species caught in each haul but rather the dates, times and locations of on board activity as can be discerned from the log books. On 17 December 2021, the SFPA issued its internal review decision. Noting that the applicant had qualified his request, amounting to a request for records redacted to describe only ‘dates times and locations of onboard activity’, it nevertheless affirmed its refusal of the request.
On 11 January 2022, the applicant applied to this Office for a review of the SFPA’s decision. In his application for review, he said that what is being sought are the dates and times fishing nets were cast from the vessel.
I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the submissions made by the applicant and to the submissions made by the FOI body in support of its decision. I have also had regard to the relevant contents of the records concerned. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned solely with whether the SFPA was justified in refusing access, under sections 35, 36 and 37 of the FOI Act, to details of the dates and times fishing nets were cast from a named fishing vessel.
While the applicant has outlined his reasons for seeking access to the records, it is important to note that under section 13(4) of the Act, in deciding whether to grant or refuse a request, any reason that the requester gives for the request shall be disregarded. This means that this Office cannot have regard to the applicant's motives for seeking access to the information in question, except in so far as those motives reflect what might be regarded as public interest factors in favour of release of the information where the Act requires a consideration of the public interest.
The records at issue comprise entries from the relevant vessel’s e-log book. According to the SFPA, the logbook data is provided by masters of specified fishing vessels to the SFPA, as the competent authority, in accordance with Irish and European law. It provided the following overview of the relevant legislation.
Regulation 5 of the Sea Fisheries (Community Control System) Regulations 2016 (the 2016 Regulations) requires Masters to comply with Council Regulation (EC) No. 1224/2009 of 20 November 2009 (as amended) (the Council Regulation), and the Commission Implementing Regulation (EU) No. 404/2011 of 8 April 2011 (as amended) (the Commission Regulation). It said Article 14 of the Council Regulation requires Masters to submit the information, while Articles 15 and 23 contain further information on the requirement to submit logbooks. Article 113 deals with the confidentiality of the information.
Article 113(1) of the Council Regulation states:
“Member States and the Commission shall take all necessary steps to ensure that the data collected and received within the framework of this Regulation shall be treated in accordance with applicable rules on professional and commercial secrecy of data”
In addition, Article 113(4) of the Council Regulation states:
“Data communicated in the framework of this Regulation to persons working for competent authorities, courts, other public authorities and the Commission or the body designated by it, the disclosure of which would undermine:
(a) the protection of the privacy and the integrity of the individual, in accordance with Union legislation regarding the protection of personal data;
(b) the commercial interests of a natural or legal person, including intellectual property;
(c) court proceedings and legal advice; or
(d) the scope of inspections or investigations;
shall be subject to applicable rules on confidentiality. Information may always be disclosed if this is necessary to bring about the cessation or prohibition of an infringement of the rules of the common fisheries policy.”
Article 113(6) states:
“This Article shall not be construed as an obstacle to the use of the data, obtained pursuant to this Regulation, in the framework of legal actions or proceedings subsequently undertaken for failure to respect the rules of the common fisheries policy. The competent authorities of the Member State transmitting the data shall be informed of all the instances where those data are utilised for these purposes.”
The SFPA argued that the information sought is exempt under sections 35(1)(a), 35(1)(b), 36(1)(b), and 37(1) of the FOI Act.
Section 35 – information given in confidence
In its submissions to this Office, the SFPA said that with regard to Article 113(4)(a), in light of the fact that the vessel owner is a sole trader, it treats all information about the conduct of the vessel owner’s business as constituting personal data in relation to the vessel owner. It said that as such, it treats the data as personal data and it argued that the Logbook Data is
subject to “applicable rules on confidentiality” as required by Article 113(4) of the Council Regulation. It said it considers “applicable rules on confidentiality” to include an equitable or common law duty of confidence.
Section 35(1)(b) of the Act provides that an FOI body shall refuse to grant an FOI request if disclosure of the information concerned would constitute a breach of a duty of confidence provided for by a provision of an agreement or enactment (other than a provision of an enactment specified in Schedule 3) or otherwise by law.
A duty of confidence provided for “otherwise by law” is generally accepted to include a duty of confidence arising in equity. This Office accepts that breach of an equitable duty of confidence is comprehended by section 35(1)(b).
In the Supreme Court decision in the case of Mahon v Post Publications Ltd  3 I.R. 338 Fennelly J confirmed that the requirements for a successful action based on a breach of an equitable duty of confidence, at least in a commercial setting, are found in the judgment of Megarry J in Coco v. A. N. Clark (Engineers) Ltd.  R.P.C. 41, at 47: “[T]hree elements are normally required if, apart from contract, a case of breach of confidence is to succeed. First, the information itself ... must 'have the necessary quality of confidence about it'. Secondly, that information must have been imparted in circumstances importing an obligation of confidence. Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it."
Fennelly J summarised or restated the requirements of what he called “the contours”
of the equitable doctrine of confidence as follows:
1. the information must in fact be confidential or secret: it must ... “have the necessary quality of confidence about it”;
2. it must have been communicated by the possessor of the information in circumstances which impose an obligation of confidence or trust on the person receiving it;
3. it must be wrongfully communicated by the person receiving it or by another person who is aware of the obligation of confidence.”
In previous decisions, this Office has adopted this approach in considering whether disclosure of information would constitute a breach of an equitable duty of confidence.
The SFPA’s position is that disclosure of the information sought would constitute a breach of an equitable duty of confidence. It argued that, given the obligations under the Council Regulation and the 2016 Regulations and the application of the “applicable rules on confidentiality” pursuant to Article 113(4) of the Council Regulation, the information contained in the logbook has the necessary quality of confidence about it and was imparted by the masters/vessel owners of the vessels in circumstances imposing a duty of confidence. It argued that in providing the logbooks to the SFPA in accordance with their obligations, masters/ vessel owners would do so on the understanding that the information would be used by the SFPA solely in accordance with the Council Regulation. With regard to the third element, the SFPA argued that masters/vessel owners would not envisage that the information would be shared with third parties, and that disclosure of the information would be an unauthorised use of the information to the detriment of the master/vessel owners. It claimed that the detriment would arise from undermining the commercial interests and privacy of the vessel owners.
The applicant argued that the employee on whose behalf the request was made is already privy to the information albeit relying on memory, and that other related records have been provided by the vessel owner to the Workplace Relations Commission(WRC) and to the applicant, which purport to record the onboard activity. He referenced information already provided by the Irish Naval Service and alleged discrepancies in the information already to hand which the logbooks would shed light on. He also suggested that much of the information contained in the logbooks is available through other sources, such as data published by the CSO, or information available on marine traffic monitoring applications. The applicant argued that he already has much of the information from other sources and wants to verify it against the SFPA information.
As I have outlined above, the first element required for an equitable duty of confidence to apply is that the information must have the necessary quality of confidence about it. In previous decisions, this Office has accepted that to have a quality of confidence, the information in question must concern private or secret matters rather than information which is trite or which is already in the public domain.
The specific information sought in this case, namely the dates and times fishing nets were cast from the vessel in question, is information that relates to the private business of the vessel owner/master. It is not information that can be described as trite. Moreover, while other similar information may well be available through other sources, it appears that the precise information sought is not publicly available. The information in question was provided by the master/owner of the vessel to the SFPA, as the competent authority, solely in order to meet his/her legal obligations under Irish and European law. In the circumstances, I accept that the information has the necessary quality of confidence about it.
I also accept that the information was communicated by the masters/vessel owners in circumstances which impose an obligation of confidence on the SFPA. As I have outlined, the information was provided to the SFPA pursuant to the legal obligation on the masters/vessel owners to do so and was received by the SFPA pursuant to its statutory responsibilities in that regard. In the circumstances, I accept that the masters/vessel owners would reasonably have understood that the information being provided would be held/used by the SFPA solely for the purposes of the provisions of, the Council Regulation. Accordingly, I also accept that the disclosure of the information would involve a wrongful communication of the information by SFPA, being aware of the obligation of confidence. I find, therefore, that section 35(1)(b) applies.
Section 35(1)(b) is not subject to the general public interest balancing test in section 35(3). However, it is well established that the action for breach of confidence is itself subject to a public interest defence and this Office may consider the public interest defence in the context of section 35(1)(b). We have previously acknowledged that the public interest grounds which may justify or excuse a breach of a duty of confidence are quite narrow and include, for example, the revelation of wrongdoing or danger to the public.
In this case, the applicant provided a copy of a submission made by his organisation to the EU Commission containing information on non-compliance and adverse findings against fishing vessel owners in relation to their engagement of Non-EEA migrant labour. According to the applicant, the contents of its submission makes the case for an overriding public interest in the release of the information sought in the context of employment rights. It seems to me that the applicant’s argument is that the release of the information would allow for conclusions to be drawn as to whether or not evidence of wrongdoing exists. This is not, in my view, the same as finding that the disclosure of the information at issue would reveal wrongdoing. Having carefully considered the matter, I am not satisfied that I have any basis for finding that the information should be release in the public interest.
In conclusion, therefore, I find that the SPFA was justified in refusing access to the information sought under section 35(1)(b) of the FOI Act. As I have found the information sought to be exempt from release under section 35(1)(b) it is not necessary for me to deal with the other exemptions cited.
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the SFPA’s decision. I find that the SFPA was justified in refusing the information sought under section 35(1)(b) of the FOI Act.
Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.