Canada: DFO Secrecy Ran Counter To Public Interest, Information Commissioner Says

For close to a decade, the Department of Fisheries and Oceans (DFO) suppressed research indicating that a foreign virus found in fish farms in coastal British Columbia was likely lethal to endangered wild salmon populations - a decision that the Information Commissioner of Canada has found unlawful.

In April 2012, a DFO scientist submitted a research report documenting the first detection of the piscine orthoreovirus (PRV) in British Columbia. The report noted that PRV, not environmental factors, were likely causing the farmed Chinook to turn yellow and die. The research had significant implications for the health of endangered wild Chinook, the preferred food source for endangered orcas.

While internal communications indicated 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 the wild Pacific salmon population, succeeded in obtaining a copy.

In 2017, DFO's regulation of PRV in fish farms led to protests and occupations of fish farms. In both 2015 and 2019, the Federal Court found DFO's regulation of PRV unlawful. A third application for judicial review is currently before the Federal Court.

Subsequent research has confirmed that PRV was imported to British Columbia from the north Atlantic, likely by fish farming. Subsequent research has also confirmed PRV causes the red blood cells of endangered Chinook to rupture en masse.

Access-to-Information Request Denied

Wild First filed an access-to-information request in 2018 seeking to obtain a copy of the PRV research but was denied. The organization then filed a complaint with the Information Commissioner, arguing 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 relating to confidential third-party information, the possibility of a financial impact on a third party and government information obtained from research. The Information Commissioner rejected each of these arguments - and went a step further, suggesting DFO's secrecy ran counter to the public interest.

Secrecy Flouted Public Interest

The Information Commissioner cited subsection 20(6) of the Act, which requires institutions to reasonably exercise their discretion when deciding to release information for public health or public safety reasons, 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 prejudice to the security of the third party's structures, networks or systems, or competitive position, or any interference with its contractual or other negotiations.

While DFO said that "none of the information withheld under section 20 could reasonably pertain to public health, safety or the protection of the environment," the Information Commissioner rejected that 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 high levels of PRV at salmon farms posed "more than a minimal risk" to wild Pacific salmon, and that PRV-1 is now "an important infectious agent in critically endangered wild Pacific salmon populations."

The Commissioner also noted that the federal government's Standing Committee on Fisheries and Oceans raised concerns about pathogens being spread to wild salmon by fish farms, and recommended DFO "improve its data transparency practices, including making information available to the public without needing approval from industry and corporate stakeholders" in a June 2021 report.

For these reasons, the Information Commissioner ruled that even if DFO had met any of the requirements under the Act for withholding the research, it still "would have been incumbent on DFO to consider disclosure under subsection 20(6), based on a consideration of all relevant factors."

In the end, Wild First succeeded in its complaint. 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 Information Commissioner's registrar. The recently appointed Minister, Joyce Murray, accepted the recommendation and released the draft paper and research report.

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

Counsel to Wild First

MLT Aikins was pleased to act as counsel to Wild First in this work. Wild First advocates for land-based fish farms in order to protect wild Pacific salmon populations. The organization has the support of 102 First Nations in B.C. - including 'Namgis First Nation, which succeeded in a previous dispute with DFO over PRV testing, and reached an agreement to maintain oversight of fish farms in its territories in 2019. Learn more about Wild First.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.