Who has the right to know what happens at sea? This is a question that receives different answers across jurisdictions, or simply said: across States. Information on how, when and by whom fisheries resources at sea are exploited is frequently not available, resulting in a call for greater “fisheries transparency”. Transparency in this context is often associated with State’s governments disclosing information. This emphasis on State responsibility to enable access to environmental information is not unique to the fisheries sector. Principle 10 of the 1992 Rio Declaration affirms the right to access information about environmental matters, including the management of marine resources. A similar commitment is found in Target 16.10 of the Sustainable Development Goals, which calls for public access to information and the protection of fundamental freedoms.
However, let’s be honest, such aspirational goals only gain practical relevance when they are translated into binding laws. Many States have adopted such laws, commonly titled “Transparency Law” or “Freedom of Information Act”, which aim to give the public a legal right to request information from government agencies. At first glance, these laws may appear to be strong tools in the fight for greater transparency in fisheries. But don’t get too excited just yet.
While transparency laws can indeed support transparency in some contexts, such as in Norway or several Latin American jurisdictions, they can just as easily result in limited access. These laws frequently contain exceptions that protect certain categories of data, including commercial information or sensitive environmental data. In some cases, the introduction of a transparency law can even strengthen legal protections that explicitly prohibit data collection or sharing. In short, the mere existence of a transparency law doesn’t guarantee access.
Don’t judge a law by its title, as a general rule.
This article provides some initial findings on transparency laws based on our research of 30+ jurisdictions (including European Union law) in the context of fisheries transparency. It introduces transparency laws and the varied impacts these laws can have on fisheries transparency.
Two Types of Transparency
To help structure our thinking around data transparency, we distinguish between two types of transparency:
- Transparency in governmental decision-making, such as the issuance of fishing licenses.
- Transparency of information and documents held by public administrations, such as the fisheries data they collect through Vessel Monitoring System (VMS) and logbooks.
Then, public disclosure can take the form of active or passive transparency, as defined in Articles 4 and 5 of the Aarhus Convention:
- Active disclosure occurs when a government proactively publishes information. For instance, Norway’s Fisheries Directorate publicly releases VMS data online.
- Passive disclosure requires a citizen request to trigger access. There is no obligation for the government to disclose anything unless prompted. For instance, the model used for NOAA in the United States under its Freedom of Information Act.
Most jurisdictions feature a mix of both systems. Whether a specific document is available depends on the nature of the information and how sensitive it is considered under national law.
Who Can Request Information?
Unlike legal proceedings, where claimants need legal standing (i.e. a specific interest in the case), information requests can typically be submitted by any individual. With no justification required (although the individual may need to be a citizen of the respective State). It usually does not matter whether the applicant has a formal interest in the information. What ultimately determines whether information is released is not the individual’s interest, but whether disclosure would harm the commercial or privacy interests of individuals or entities.
Having outlined the basics of transparency laws, there are two key considerations Natural Justice has identified when applying these laws to fisheries transparency: the prevalence of passive transparency and the varying cultural approaches to transparency.
Consideration No. 1: Passive Transparency
Transparency commitments may primarily take shape as passive transparency. Meaning that whether or not access is granted depends on the discretion of the authority receiving the request. A public body may reject the request outright or release a heavily redacted version that strips the document of any real informative value. These scenarios are so common that they inspired the icon for this series on fisheries data transparency. In my home country of the Netherlands, there are examples of public documents redacted to the point where only the page number and date was still visible. In such cases, rather than enabling access, one could argue that transparency laws create a false sense of openness, while reinforcing the very secrecy they were designed to combat.
Consideration 2: Difference in legal culture around transparency
Another key question to consider is how much the practical impact of a transparency law depends on the legal culture of the jurisdiction, since that culture influences how the law’s provisions are interpreted and applied. At the same time, the language of the law itself often reflects that very culture. It’s a bit of a chicken-and-egg situation. In States where there is less of a tradition of transparency of (governmental) information, the transparency laws may affirm existing legal protections. An example is the treatment of trade secrets under the U.S. Freedom of Information Act (FOIA), which allows the withholding of any information classified as a trade secret, even if its merit as such is questionable. We’ve discussed this further in [this article on trade secrecy and transparency].
Transparency laws are often a good indicator of a jurisdiction’s broader “transparency culture”
On the other hand, some jurisdictions use transparency laws to override or soften protections from other laws, promoting the spirit of openness. Norway is a well-known example, offering a high level of fisheries data transparency, among others demonstrated through its publication of VMS data. This stands in stark contrast to the EU and its member states, where only AIS data is shared and requests for more reliable sources of fisheries data (like those provided through VMS) are often met with resistance. Typically citing restrictions related to personal privacy and data protection laws. These privacy and data protection laws between Norway and the EU Member States are almost identical, so what does explains the difference in approach between Norway and EU member states? While this can’t be fully answered from a strictly legal perspective, transparency laws can offer a clue here! Transparency laws are often a good indicator of a jurisdiction’s broader “transparency culture”. For example, Norway’s Freedom of Information Act (‘offentleglova‘) states that “where there is occasion to exempt information from access, an administrative agency shall nonetheless consider allowing full or partial access. The administrative agency should allow access if the interest of public access outweighs the need for exemption” (Section 11).
This clearly demonstrates a prioritisation of public interests, even if the starting point was that the information would be exempt from publication. Thus expanding the scope of publicly available information through its transparency law. As stated in a press release following Norway’s decision to share its VMS data with Global Fishing Watch, the Norwegian Directorate of Fisheries finds: “Wild living marine resources are a common good and belong to everyone. When a commercial fishing fleet is licensed to utilize this common good, we are obliged and committed to share fisheries data documenting the environmental footprint of commercial fishing activity. […]”.
Several Latin American countries also have transparency laws that arguably promote more openness. For example, Chile’s Freedom of Information Act (Ley sobre Acceso a la Información Pública, No. 20.285) states that acts of public entities should be public. That in itself is not noteworthy and typical for transparency laws. What is interesting howver, is that this law is reinforced by Chile’s environmental law (Ley No. 19.300), which affirms that everyone has the right to access environmental information held by public authorities, in accordance with the Freedom of Information Act (Article 31). This illustrates how sector-specific laws can confirm, and even expand, the scope of general transparency laws. While the legal basis differs from Norway’s approach, we see a similar emphasis on keeping the door open and allowing discretion to support, rather than hinder, information sharing. This contrasts with the examples of the EU and the U.S. under its FOIA, where access to public information is possible, but the prioritisation of specific protections can likely hinder the disclosure of fisheries data (or any other environmental data). In those cases, either the transparency laws themselves include restrictive provisions, or other laws are invoked to limit their scope.
A final piece of advice
Before we wrap up this article, there are two final things I would like to mention as I noticed these are at times overlooked.
First, when a transparency law or other mechanism enables an individual or organisation to access information, this does not mean they then own that data. There is a crucial distinction between access to data and ownership of data, especially when it comes to your ability to further share or publish the data.
Second, a jurisdiction’s transparency culture applies across the board. It is unrealistic to expect the highest level of transparency in fisheries management if other parts of society remain largely opaque. Take Norway, for example: not only does it publish VMS data, but it also makes public the annual income, tax payments, net worth, and voting participation of all citizens. You want full transparency of fisheries data? Get ready to have your in-laws know exactly how much you make.
Conclusion
The goal of this article is not to promote one type of transparency law over another. Rather, it’s to underscore that the mere existence of a transparency law should not be taken as a guarantee of meaningful access. By sharing some of our findings in the context of transparency laws, we hope to support those making meaningful change in fisheries data sharing to consider these laws adequately in their policy making. I, Eva, am personally not sure yet where I stand on all of this, and probably won’t be until I’ve reviewed all relevant laws in detail and understand the full range of benefits and risks associated with fisheries data sharing beyond public entities.
Until that time, I’m sorry, but “it depends”.
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