Public Access to Observer Data
January 2017: NOAA withdrew its proposal from the 2012 rule below. Good news but stay tuned.
Please sign on to this letter to show your support for public access to observer data. Just e-mail APO and we will add your name to the list. Here are the organizations that are showing support. Please also sign Pew Charitable Trusts' petition to NOAA to withdraw this flawed proposal before the comment period deadline.
This proposed rule has been languishing for 5 years behind closed doors at NMFS, since Congress unleashed sweeping restrictions to public access to observer data and information through the MS Act revisions in 2007. NMFS gave the public no indication as to how it would apply the law, until now. The proposed rule is dense and complicated. Informal discussions with agency officials about the rule are conflicting and require legal analysis. Most comments submitted thus far concern the original lack of time given to the public to comment (one month). We were granted an extension until August and then the Councils requested the October 21 extension. Please contact APO if you would like to engage in an open discussion about the implications of this rule.
This proposed rule appears to go beyond the damage to public access that was done by the confidentiality provisions of the MSA. Fishery management practices are moving toward sequestering public resources out of the hands of individual fishermen and into the hands of larger entities - coops, corporations, sectors, etc. - which all have the potential to grow in percentage of access and number of vessels. This proposed rule codifies a shift in NMFS to accommodate these entities while protecting them from public scrutiny of their fishing practices.
It is a shift in the "Rule of Three" guideline, which aggregated data from 3 or fewer individual vessels in an area to the next larger area until the minimum 3 vessels was reached. Now NMFS appears to shift toward applying this rule to "entities", aggregating the data from 3 or fewer corporations, coops, sectors, etc. within an area to the next larger area. This has the potential to greatly expand the footprint of secrecy and allows NMFS to eliminate public access entirely (not just blur an "entity's" data). This will blur the causal relationships between fishing practices and impacts on the marine environment.
NMFS has always had the authority to protect the privacy of entities under the NOAA Administrative Rule 216-100 (among other acts), which defines a person, for purposes of privacy protection, as:
"any individual (whether or not a citizen or national of the United States), any corporation, partnership, association, or other entity (whether or not organized or existing under the laws of any State), and any Federal, Stat, local, or foreign government or any entity of such governments, including Regional Fishery Management Councils (Councils)."
As you can see this includes almost everything under the sun, but NMFS has most likely used this authority judiciously. Now the agency appears to be shifting to using this authority on a broad scale.
Although NMFS did nothing to reach out to the public regarding this rule, they did reach out to scientists within their own agency, some of whom responded with legitimate concerns about the ability to sustainably manage fisheries lacking access to observer data.
- Memo from the Marine Mammal Lab outlining MSA confidentiality provisions that would negatively impact the agency's ability to manage incidental take of marine mammals in commercial fisheries.
- Observer Confidentiality Issues with Local Depletion and Fishing Impact Studies.
Project OverviewThis project focuses on advocating for public access to fisheries observer data and information. Recent changes in the Magnuson Stevens Act led to increased sheltering of US fisheries data from the public and NMFS is in the process of updating agency rules to comply. Without public access to fisheries observer data and information, independent institutions and organizations cannot evaluate observer program effectiveness; there is no oversight of fishery management decisions to tackle critical ocean problems, such as overfishing and marine ecosystem destruction from harmful fishing practices; and oversight is lacking for publicly funded research using observer programs to develop bycatch mitigation legislation. This project is currently U.S. national in focus but we welcome international efforts in areas of the world where similar problems of independent oversight may be lacking.
The Magnuson Stevens Reauthorization Act 2006 (MSRA) essentially deemed all observer data and information confidential. This was a huge blow to the public's ability to monitor fishery management decisions through its access to fisheries monitoring data. The National Marine Fisheries Service has yet to develop national standards that implement the more restrictive language of the MSRA, allowing regions to develop their own interpretations to the Act, which could lead to bias against certain stakeholders' access to observer data. The nation's fisheries are becoming increasingly privatized, if not by law, by practice. The MSRA still insists that marine resources are a public resource. As such, the public should maintain its right to data access. Likewise, the policies of the government concerning data access should be transparent, but this has not been the case.
US observer program officials met in 2003 and again in 2008 to discuss regional policies on data release. These meetings and resulting NMFS guidelines on data release have not been available to the public.
In February 2009, 27 organizations joined the APO in a letter urging NMFS to maintain public access to observer data and information. The APO attempted to get meeting materials from the two workshops but were initially denied. APO then submitted two FOIA requests in December 2009 to clarify who was involved in restricting public access to observer data and what direction they were heading with the changes in the MS Act. A special thanks goes to Public Employees for Environmental Responsibility, http://www.peer.org, for their generous assistance from the beginning of this process and their legal representation.
FOIA No. 2010-00126: requesting documents related to regional and national guidelines and rules from 1990 - 2006; and 2007-Present
1. December 25, 2009: APO Original FOIA
2. January 27, 2010: APO Revised FOIA Request, based on NMFS' claim that archived records prior to 1990 would be especially troublesome to access.
3. January 5, 2010: NMFS Response, acknowledgement of original FOIA request
4. January 13, 2010: NMFS Response, requesting clarification and revision of FOIA request
5. February 23, 2010: NMFS Response, charging APO $4532.65
6. March 19, 2010: APO Appeal justifying fee waiver
7. March 22, 2010: NMFS Response, acknowledging APO's appeal
8. June 4, 2010: APO Formal Complaint, based on lack of agency response
9. September 3, 2010: NMFS Response, granted fee waiver in response to March 19 appeal.
10. October 8, 2010: NMFS Response, partial release of documents, from all but the Southeast Region
11. October 14, 2010: NMFS final response, with records from the Southeast Region (note: no acknowledgment of the formal complaint, which is still active)
FOIA No. 2010-00153: requesting documents related to two NOAA FOIA workshops held in 2003 and 2008
1. December 25, 2009: Original FOIA
2. January 19, 2010: NMFS Response, acknowledging FOIA
3. February 23, 2010: NMFS Response, charging APO $4185.00
4. March 19, 2010: APO appeal, claiming justification for fee waiver
5. March 22, 2010: NMFS acknowledged appeal
6. April 20, 2010: NMFS responded incompletely, citing adminstrative rules
7. May 18, 2010: APO appeal
Documents Released - Both FOIAs resulted in incomplete release of information. Please see the indexes below and feel free to contact us if you would like to review them.
NMFS FOIA Guidelines Index (FOIA 2010-00126): It appears that the documents released for this FOIA are incomplete.
NMFS FOIA Workshops Index (FOIA 2010-00153): We received only a partial response (no e-mails), without an explanation for blacking out certain sections.
- Gary Matlock, 1997
- Samuel Rauch 2008, Ned Cyr 2009 memos
- All Regions confidentiality issues, 2008; Regional comments on NOAA Administrative Order 216-100
- Bill Karp, 2007
- James Coe, 2007
- James Balsiger, 2002
- AFSC Draft Confidentiality Handbook (undated but included in the 2008 workshop materials)
- Northeast Regional Issues Regarding Data Confidentiality and Suppression, 2008
- Northeast Data Release Policy, 2010
- NMFS Guidelines, Southeast, 1992
- SEFSC Observer Programs: Confidentiality background, 2008 (redacted)
- Revised Data Confidentiality Handbook, 1996
- Southwest Region and SW Fisheries Science Center Data Confidentiality Handbook, 1997
- Joint Pacific Islands Region and SW Region Policy for Dissemination of HMS Fishery Data to Regional Fishery Organizations, 2005
- Southwest General Counsel Confidentiality Files (mostly redacted)
- SW Regional Summary of Materials for 2008 Workshop
Hawaii and Pacific Islands Region
- Honolulu Laboratory Policy on Confidentiality of Fisheries Operations Data, 1999
- PIFSC Policy on Confidentiality of Fisheries Operations Operations Data, 2007
- Data Confidentiality Summary for the Pacific Islands Fisheries Science Center, undated
- Suggestions for Handling Confidential Data, 2007
- Data Request Procedures, undated
- West Coast Groundfish Observer Program (WCGOP) Data Request Procedures, Undated
- Northwest's Regional Issues Regarding Data Confidentiality and Suppression, 2008
Western and Central Pacific Commission
- Proposed Revisions to the Procedures for the Provision of Data, 2007
- Rules and Procedures for the Protection, Access to, and Dissemination of Data Compiled by the Commission, 2007
- Draft Framework for Access to Different Types of Non-Public Data; Draft Data Request Form and Draft Confidentiality Agreement, 2007
Last Update 13 January 2017
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