Publication - FOI/EIR release

Marine Scotland (MS) rights under Fisheries Act documentation: FOI release

Published: 1 Nov 2019

Information request and response under the Freedom of Information (Scotland) Act 2002

Published:
1 Nov 2019
Marine Scotland (MS) rights under Fisheries Act documentation: FOI release
FOI reference: FOI/19/02312
Date received: 10 Oct 2019
Date responded: 1 Nov 2019
Information requested
  • all information and documentation pertaining to your [Marine Scotland’s] rights under the Fisheries Act (this refers to the Salmon and Freshwater Fisheries (Consolidation) (Scotland) Act 2003);
  • a copy of all correspondence between you [Marine Scotland] and the Cabinet Secretary relating to  access at Gualin; and
  • details of the protocols and procedures in place for you [Marine Scotland] to invoke your [Marine Scotland’s] powers under the Act.
Response

 

I will deal with each of the points above in turn.
1.  All information and documentation pertaining to Marine Scotland’s rights under the Salmon and Freshwater Fisheries (Consolidation) (Scotland) Act 2003.
The Act is published online and is freely available to download - http://www.legislation.gov.uk/asp/2003/15/contents. This is all the information that is available for this part of your request.  Under section 25(1) of FOISA, we do not have to give you information which is already reasonably accessible to you.  If, however, you do not have internet access to obtain this information from the website listed, then please contact me again and I will send you a paper copy.

2. 
A copy of all correspondence between Marine Scotland and the Cabinet Secretary relating to access at Gualin.
Copies of all such correspondence are enclosed.  In this instance we are unable to provide some of the information you have requested because exemptions under s.30(b)(i) (free and frank provision of advice) and s.38(1)(b) (personal information) of FOISA applies to that information.  The reasons why those exemptions apply are set out in the Annex to this letter
 

3.  Details of the protocols and procedures in place for Marine Scotland to invoke powers of access under the Act.  

  • Part 6 of the act provides powers to Scottish Ministers to conduct inquiries and obtain information
  • 64A describes the “Powers in relation to salmon and freshwater fisheries: sampling, etc”.
  • Paragraph 3 states that “An authorised person seeking to exercise a power mentioned in subsection (1) above must, if requested, produce evidence of identity and authorisation”.

There are no other procedures or protocols specified by the Act

ANNEX
REASONS FOR NOT PROVIDING INFORMATION

Exemptions apply

An exemption under section 30(b)(i) of FOISA (free and frank provision of advice) applies to some ofthe information requested.  This exemption applies because disclosure would, or would be likely to, inhibit substantially the free and frank provision of advice.  This exemption recognises the need for officials to have a private space within which to provide free and frank advice to Ministers before the Scottish Government reaches a settled public view.  Disclosing the content of free and frank advice on the powers of access at Gaulin will substantially inhibit the provision of such advice in the future.
This exemption is subject to the ‘public interest test’.  Therefore, taking account of all the circumstances of this case, we have considered if the public interest in disclosing the information outweighs the public interest in applying the exemption.  We have found that, on balance, the public interest lies in favour of upholding the exemption.  We recognise that there is a public interest in disclosing information as part of open, transparent and accountable government, and to inform public debate.  However, there is a greater public interest in allowing a private space within which officials can provide full and frank advice to Ministers, as part of the process of exploring and refining the Government’s position on this issue and advising Ministers of actions to take.  This private thinking space is essential to enable all options to be properly considered, based on the best available advice, so that good decisions can be taken.  Disclosure is likely to undermine the full and frank discussion of issues between Ministers and officials, which in turn will undermine the quality of the decision making process, which would not be in the public interest.

An exemption under section 38(1)(b) of FOISA (personal information) applies to a small amount of the information requested because it is personal data of a third party, ie names/contact details of individuals, and disclosing it would contravene the data protection principles in Article 5(1) of the General Data Protection Regulation and in section 34(1) of the Data Protection Act 2018.  This exemption is not subject to the ‘public interest test’, so we are not required to consider if the public interest in disclosing the information outweighs the public interest in applying the exemption

About FOI

The Scottish Government is committed to publishing all information released in response to Freedom of Information requests. View all FOI responses at http://www.gov.scot/foi-responses.

Contact

Please quote the FOI reference
Central Enquiry Unit
Email: ceu@gov.scot
Phone: 0300 244 4000

The Scottish Government
St Andrews House
Regent Road
Edinburgh
EH1 3DG