- Over the course of three months earlier this year, Mongabay and Bloomberg Línea requested information from the Panamanian authorities concerning inspections carried out on Panama-registered boats and the resulting sanctions that were imposed.
- Panamanian authorities denied much of the request, claiming it concerns information of a restricted nature.
- The authorities did grant a request to review vessel records at the location where they are held, but prohibited the reporting team from taking photographs or making photocopies. The team found paper records arranged in thick folders with pages in neither ascending nor descending order, which made the search a complex task.
- Lawyers who specialize in fishing and environmental issues say the authorities should release the information, and that the difficulty accessing it hinders efforts to uncover illicit activities.
This is the second in a two-part series originally published in Spanish on Mongabay Latam. You can read the first part here.
An investigation recently published by Mongabay Latam and Bloomberg Línea seeks to answer the question: Why would a foreign boat request to fly the Panamanian flag?
Numerous experts, scientific publications and reports point out that while this practice, known as flying a “flag of convenience,” is legal, it can also facilitate illegal fishing.
After analyzing incomplete information provided by the Aquatic Resources Authority of Panama (ARAP), the investigation reveals that the majority of vessels sanctioned between 2019 and 2021 were refrigerated cargo ships, also known as reefers, a type of vessel that has been highlighted by the United Nations Food and Agriculture Organization for its role in illegal fishing activities. The investigation also reveals that all of the reefers that were sanctioned belong to foreign companies, mostly Chinese, and that three of them received cargo from fishing boats belonging to a company with one of the world’s longest records of illegal fishing.
Over the course of the investigation, the team of journalists encountered a number of obstacles accessing relevant public information. Between February and April 2022 Mongabay Latam and Bloomberg Línea tried to obtain information from the Panama Maritime Authority (AMP) detailing safety inspections and monitoring, control and surveillance checks carried out over the last 10 years on vessels operating under a Panamanian flag, as well as the results of sanctions proceedings, the reasons for the rulings, the fines imposed and compliance with the sanctions.
The AMP, however, refused to hand over the information, arguing that it is of a “restricted nature” despite its not being described as such in Panama’s Transparency Law nor being declared as such by any other kind of ruling.
Lawyers who specialize in maritime and environmental issues in Panama and other Latin American countries say this information is public, and that there are no well-founded reasons for the maritime authority to deny access to it.
“I am not aware of any [legal] provisions that establish that sanctions on Panamanian ships must be confidential,” says Guillermo Márquez Amado, a former magistrate of the Electoral Tribunal of Panama and former director of the Merchant Marine branch of the AMP. “There has been an abuse [of power] on the part of the authorities who have taken on the role of covering things up in order not to reveal which sanctions they impose on law breakers,” he adds.
The impossibility of accessing this information could also hinder the detection of illegal activities that put the health of the ocean’s ecosystems at risk, legal experts interviewed for this story say.
Reasons for restricting access to information
The AMP did provide a list featuring just over 12,000 Panama-flagged vessels, of which 8,536 have a valid international patent or permit and belong to foreign companies. However, it did not detail whether these vessels were subject to sanctions, the motive for any sanctions, or the result of or type of inspections that were carried out on them. In cases where fines were imposed, it did not reveal whether the fine had been paid, much less the details or reasoning for the cancellation of some permits.
In the AMP’s view, this information is restricted, in accordance with Article 14, Section 2 of the 2002 Transparency Law.
The article in question states that when information is considered to be of restricted access, it cannot be released for a period of 10 years, starting from the date on which the competent authority declares the information as such. Furthermore, the article states that such a declaration must be made after the information is classified in that category of restriction by means of a resolution. In other words, there should be a resolution ratifying the restricted nature of the information Mongabay Latam and Bloomberg Línea requested from the AMP, but none was ever issued.
“The Transparency Law is not for restricting [access to] information as the Panama Maritime Authority is doing,” says Harley Mitchell, a Panamanian environmental lawyer who was the head of consultations for the Panama Government Attorney’s Office from 2019 to 2020.
The Transparency Law can be applied to restrict access to information when the information concerned relates to national security, trade secrets or proceedings of the judicial body or the Public Prosecutor’s Office.
The law also establishes as confidential information regarding mineral and oil deposits, minutes of commercial or diplomatic negotiations, transcripts of “friendly nations” investigations, cabinet council minutes (except for those related to contracting) and information from the National Assembly committees when they meet in their oversight capacity. But it doesn’t say anything about issues related to the activities that the maritime authorities must carry out to monitor compliance with rules or information about whether or not fishing companies are complying with the rules.
Furthermore, although the law also states that information relating to investigative proceedings is restricted, the AMP does not appear on the list of public bodies that must restrict such information.
“The list of institutions whose dossiers can be declared ‘restricted access’ is a list of limited number, and it excludes those that it does not explicitly mention,” Mitchell says. In other words, if the AMP is not on the list of public bodies that must withhold information on investigative processes, then it cannot restrict access to its files, he says.
Conversely, the same requested information about sanctioned vessels to which the AMP denied access, ARAP handed over. In fact, this information enabled the Bloomberg Línea and Mongabay Latam investigation to take place and be published. However, the fact that one institution divulges a set of information and another does not shows inconsistency in the interpretation of the Transparency Law.
Of “restricted” nature
The AMP reports that between 2011 and 2021 an average of 4,737 inspections were carried out each year, although in 2021 the number was 5,871.
It also states that between 2000 and 2021, 1,039 fines were given, of which 803 were enforced, according to an institutional report dated Jan. 14, 2022.
Given the lack of precision in the information provided, the team of journalists behind this investigation insisted upon the release of information detailing the type of inspections that took place — that is, whether they were document checks, were carried out on board, in Panamanian ports or abroad. Furthermore, regarding the fines that were imposed, the team asked again about the type of sanctioned vessels, whether they were reefers, fishing boats or recreational boats. However, the AMP granted none of these requests.
Carmen Heck Franco, director of policy at the Peruvian branch of the international marine conservation NGO Oceana, says that in most countries, information on inspections related to a specific vessel is confidential only when it fits within the scope of an ongoing administrative sanctioning procedure, and only until the procedure is resolved.
“It’s worrying that Panama is the exception,” Franco says, since having access to information about vessels’ compliance with the law is of vital importance to the global fight against illegal fishing.
Despite this, the AMP received backing for its decision not to disclose this information from the Transparency and Access to Information Authority (ANTAI), the body in charge of ensuring compliance with the Transparency Law.
For Márquez Amado, the former magistrate, both ANTAI and AMP employees are exceeding their duties by preventing access to information.
“ANTAI cannot overrule what the law says, that is a basic principle of the hierarchy of laws … it could be a case of overreach by both parties [the AMP and ANTAI],” Márquez Amado says.
Undigitized archives and no photos allowed
What the AMP did grant was a request for an on-site review of the vessel records, at the location where they are held.
However, the records were arranged in folders with pages in neither ascending nor descending order. The folders were as thick as two to four textbooks stacked atop one another, all of which made the search a complex task.
Furthermore, the conditions for reviewing the files were that neither photocopies nor photographs could be taken of even a single document. Neither was it permitted to photograph the room in which the archives are stored.
According to Rafael Cigarruista, director general of Panama’s Merchant Marine branch of the AMP, such a photograph would not be the best way for Panama to present to the world how it stores the information. He adds that he is working on a “modernization” project to store the files in electronic form.
An AMP bulletin from April indicates that one of its goals for this year is to digitize its entire collection of documents. It is dubbed “the year of technological transformation” for the records, and the agency is investing in technology that will help with supervision, investigation and registry issues.
The yellow list
In 2019, the European Commission issued Panama a “yellow card,” reserved for countries it deems not to be cooperating in the fight against illegal, unreported and unregulated fishing. That status is ongoing. It’s not the first time: Panama had a yellow card from 2012 to 2014 for failing to meet its responsibilities to guarantee its boats did not participate in activities that undermine internationally agreed conservation measures.
European authorities met with ARAP to discuss the issue and requested further monitoring of the AMP following its last audit by the EU in December 2019.
In response to finding itself with a yellow card again, as a noncooperative country, Panama increased inspections of foreign-registered fishing vessels that dock in Panamanian ports from 5% to 100%, according to ARAP.
Furthermore, ARAP highlights the monitoring of ships using satellite tracking platforms to verify that they are fishing in authorized zones and following the rules.
Milko Schvartzman, an Argentine expert in marine protection and the coordinator of the Argentine NGO Circle of Environmental Policies, says he appreciates the Panamanian government’s efforts to eradicate illegal, unreported and unregulated fishing, but it is not enough.
Meanwhile, during an audit that started the week of June 13, the EU will have to decide whether Panama will be upgraded to a green card or demoted to a red card for not having satisfactorily implemented measures to discourage illegal, unreported and unregulated fishing. A red card would harm Panama’s exports to the EU, shutting out all sea exports from the country.
The EU is the second biggest export market for Panama, after the U.S. According to data from Panama’s Ministry for Commerce and Industries, between 2010 and April 2022, Panama exported $372.2 million worth of fishery products to the EU, representing Panama’s third biggest export to the bloc of any kind.
The possibility of an embargo on Panamanian sea products “is highly worrying” for the fishing industry, Raúl Delgado, president of Panama’s National Chamber of Fishing and Aquaculture, says. Delgado hopes the EU will see the advances made by Panama and that fishing-derived products, such as fish oil, fishmeal and prawns, will not be banned from entering the trading bloc.
Banner image by Kipu Visual.
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