Fisheries and Oceans Canada was ordered to disclose observer data about discarded black dogfish after failing to substantiate its claims that release would expose confidential fishing information or harm harvesters’ competitive interests. In Fisheries and Oceans Canada (Re), 2026 OIC 54, dated July 22, 2026, the Information Commissioner of Canada ordered disclosure of all the information at issue.
The request covered non-retained black dogfish bycatch recorded from 2000 to 2021 in fisheries operating in Northwest Atlantic Fisheries Organization subareas 0 through 4, using data from DFO’s Newfoundland region. It sought the year, area, gear type, observer coverage, targeted species, and the total weight and number of black dogfish discarded.
DFO withheld the entire response under two third-party exemptions in the Access to Information Act. It also argued during the investigation that the data could identify individuals, although personal information had not been an exemption in its original decision.
Commercial context was not enough
Paragraph 20(1)(b) requires all four elements of its exemption to be established: qualifying financial, commercial, scientific or technical information; confidentiality; supply by a third party; and consistent confidential treatment by that party. The commissioner accepted that the information had been supplied by third parties, but found the other requirements unproven.
DFO argued that bycatch can have market value and that the data could expose fishing strategies. The commissioner distinguished the actual request: these fish had been discarded and had no catch value for the harvesters. Standardized, mandatory regulatory codes were not commercial information belonging to a particular harvester merely because they related to commercial activity.
Nor did DFO’s possible later use of the observations in scientific modelling make them scientific analysis in the harvesters’ hands. The records contained routine operational observations, rather than their scientific interpretations or conclusions.
The department said confidentiality agreements existed among harvesters, observers and DFO, but did not provide copies despite being asked. General references to legislation, policies and confidentiality expectations did not establish the necessary protection. The commissioner also found insufficient evidence that individual third parties consistently treated the information as confidential.
Predicted harm needed an evidentiary link
Under paragraph 20(1)(c), the department had to establish a reasonable expectation of probable financial loss, gain or competitive prejudice, rather than a mere possibility. DFO suggested competitors could combine the records with other information to reconstruct harvesters’ strategies, noting that many data cells involved fewer than five vessels.
The commissioner found that explanation too speculative. DFO did not identify the outside datasets or demonstrate how they could be linked to the requested records. Its suggestion that black dogfish might become commercially valuable in future, or that multiple requests might eventually reveal a pattern, did not establish the necessary connection to harm from this disclosure.
The identification problem also affected the investigation itself. DFO said matching historical vessel information to particular harvesters or companies would be onerous and did not identify the relevant third parties. Because the commissioner could not reasonably locate them from the records or the department’s information, the statutory requirement to give locatable third parties an opportunity to make representations was not triggered.
Privacy argument also fell short
The requested data did not include names, vessel registration numbers, trip dates, ports, quotas or catch logs. The commissioner found no demonstrated serious possibility of identifying an individual, either from the records alone or in combination with available information. The Privacy Commissioner, consulted during the investigation, likewise considered the evidence insufficient.
A separate allegation concerned DFO’s internal “Rule of 5.” The investigation found that the department had not applied that policy to refuse this request. The ruling therefore did not uphold the complainant’s allegation of an unofficial policy being used to deny access.
The complaint was well founded because the claimed exemptions did not justify withholding the records. DFO notified the commissioner on July 16 that it would implement the disclosure order. The report records that commitment, not proof that the requester subsequently received the dataset.
The report allowed the complainant or institution 35 business days to seek Federal Court review, followed by 10 business days for the Privacy Commissioner. The order would take effect on the 46th business day if no review were sought. This report does not independently confirm whether a review application was filed.
The decision turns on the evidence supporting the exemptions for this particular dataset. It does not make all fisheries records public or eliminate protection for genuinely confidential commercial information. It demonstrates that an institution must connect the actual information requested to the statutory criteria, rather than rely on the sensitivity of the industry in general.
