Was Gerry Byrne obligated to tell us about 2.6 million dead salmon? Information watchdog wants to know

Fisheries Minister Gerry Byrne maintains he was bound to silence because of an ongoing investigation into a massive fish kill off Newfoundland's south coast, but the information and privacy commissioner wants to know if he had other obligations.

Byrne has faced criticism for staying quiet over what government called a"mass mortality event" that wiped out 2.6 million salmon. Northern Harvest Sea Farms had beenraising the salmon in cages along the coastline.

Byrne declined more than a dozen requests for interviews after CBC News became aware of the situation and visited the south coast.

Commissioner Michael Harvey has launched an investigation into how Newfoundland and Labrador's information and privacy laws fit into what some activists are calling a catastrophe at Northern Harvest Sea Farms.

"We can't bring those fish back to life but hopefully we can learn from this experience and learn what, in this case, the heads of public bodies can and are obligated to do when it comes to disclosing information to the public," Harvey told CBC Radio's The Broadcast.

Harvey said the investigation was prompted by a question from NDP fisheries critic Jim Dinn, who asked how a specific section of the legislation could apply to this case.

That section 9.3 of the Access to Information and Privacy Protection Act states that public bodies have a duty to disclose information on events that pose a risk to public or environmental safety.

Would have beenportrayed as bad guy

Byrne says they have no way of knowing thatuntil an investigation is complete. He spoke with CBC News on Thursday and raised another section of the act, which states public bodies cannot disclose information that would be harmful to a "law enforcement matter."

During an interview withHere & Nowhost Anthony Germain, Byrne contendedhe'd be portrayed as the bad guy if he released information on the fish killand it jeopardized the investigation into what happened.

CBC News became aware of the situation only after the fisheries union sounded the alarm.

While the incident started on Sept. 3, it wasn't until Oct. 11 more than five weeks later when the company admitted that 2.6 million fish were dead.

The federal government arguably was the silent player here in this.- Gerry Byrne

Byrne said companies are mandated to self-disclose when disasters happen but in this case, the company said the fish died from a "warm water event," and it believed the reasons fell outside the parameters for self-disclosure.

As a result, the company stayed silent.

Byrne was pressed on why he didn't feel it was necessary to use ministerial discretion and come forward with the information on his own.

Again, he said it could affect the investigation.

"The duty to tell what's really going on is to investigate, to ensure you know what's going on," he said.

Byrne also pointed fingers at the federal government for staying silent.

The Department of Fisheries and Oceans as well as Environment and Climate Change Canada both refused repeated CBC News requests for interviews.

"The federal government arguably was the silent player here in this, but with that said, they have the greatest role," Byrne said.

"We'll see what the federal government has to say about this in due course."

Section never tested before

Harvey said the information and privacy investigation it will take about three months to complete.

He'll be calling on the provincial government to turn over any relevant documents. A key part will be to find out who knewwhat and when.

While it's not an investigation into aquaculture, Harvey said it will be important to understand the consequences of a fish kill of such amagnitude, in order to interpret the legislation correctly and determine when mandatory disclosure is necessary.

Section 9.3 has never been subject toanycomplaints or investigations, so Harvey and his team will be breaking new ground.

"This part of our act has not really been used before, so this is an opportunity for us to really think about it and how it should be used," he said.

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