March 6, 2008

National Marine Fisheries withholds documents on right whale death

Commercial fishermen are disappointed that National Marine Fisheries Service released fewer than half of the documents and correspondence pertaining to the death of a right whale in 2006.

The North Carolina Fisheries Association and the Garden State Seafood Association requested the documents under the Freedom of Information Act on March 16, 2007.

National Marine Fisheries Service (NMFS) provided 1,096 documents and portions of 131 others out of the 2,565 documents associated with a dead right whale found off the coast of Jacksonville, Fla., in January, 2006.   

The agency also released 483 photographs to the commercial fishing groups.

The agency sent the documents in three batches during the period from August, 2007 through February, 2008.

Fishermen requested the information in order to review the steps that lead NMFS to conclude that injuries sustained from entanglement with gillnet caused the death of the whale and to prohibit gillnets in an area off South Carolina, Georgia, and Florida during right whale calving season, November to April.

Greg DiDomenico, executive director of the Garden State Seafood Association, said scrutiny of the agency’s actions would be difficult because NMFS withheld so many documents.

Under the Freedom of Information Act (FOIA), an agency can refuse to disclose records that fall under one of nine statutory exemptions, such as classified documents relating to national defense or foreign policy or documents that contain confidential business information.  If only a part of a document falls under an exemption, the agency is required to release other portions of the document.

In a letter to DiDomenico, NMFS identified the internal government communications exemption as reason for most of the disclosure denials.

That exemption protects inter-agency or intra-agency memorandums or letters that would not be available by law to a party in litigation with the agency.

The exemption is intended to protect the deliberative policymaking process of government and to foster discussion of policy within federal agencies.

NMFS advised DiDomenico that 1,229 pages of emails were withheld because they “include open, frank discussions between NMFS’ Protected Species Divisions’ staff, including superiors to subordinates, and/or NMFS’ consultants” regarding scientific information in necropsy reports, discussions on the cause and deliberations on potential responses to the whale’s death, and other information.

Application of the internal government communications exemption is complicated.

The exemption applies only to the period when decisions are made, and doesn’t apply to factual information. It does apply to communications containing legal advice and to documents prepared in anticipation of litigation.  

Most courts have determined that the exemption applies not only to documents generated by an agency but also to documents from outside consultants.

In addition to documents withheld under the internal government communications exemption, NMFS withheld other documents under the personal privacy and law enforcement exemptions as well as under the Magnuson-Stevens Fishery Conservation and Management Act.

The fishing groups have 30 days to appeal the denial determination.


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