Publication - FOI/EIR release

West Coast Salmon Smolt Tracking Project: EIR release

Published: 20 Aug 2020

Information request and response under the Environmental Information (Scotland) Regulations 2004

Published:
20 Aug 2020
West Coast Salmon Smolt Tracking Project: EIR release
FOI reference: FOI/202000043321
Date received: 1 Jun 2020
Date responded: 28 Jul 2020
Information requested

1. Please provide any and all correspondence, no matter how related, email (or any other electronic means), telephone records, minutes or notes of meetings, letters, instant messaging, sent and received by Marine Scotland in relation to a project titled "West Coast Salmon Smolt Tracking Project" being undertaken by the Atlantic Salmon Trust and Fisheries Management Scotland for the period covering 12 Feb 2020 to date.

2. Please provide any and all correspondence, no matter how related, email (or any other electronic means), telephone records, minutes or notes of meetings, letters, instant messaging, between Marine Scotland and the Atlantic Salmon Trust and Fisheries Management Scotland in relation to a project titled "Wild Salmon Strategy" (or any other name by which it is referred to) for the period 1 Jan 2019 to date.

3. Please provide all correspondence between Fergus Ewing (including his constituency staff or his ministerial office) and the Atlantic Salmon Trust and Fisheries Management Scotland for any reason for the period 1 Jan 2019 to date.

4. Please provide all correspondence between Roseanna Cunningham (including her constituency staff or her ministerial office) and the Atlantic Salmon Trust and Fisheries Management Scotland for any reason for the period 1 Jan 2019 to date.

5. Please provide details of any meetings (including correspondence, minutes or notes) held between Marine Scotland and the Atlantic Salmon Trust and Fisheries Management Scotland for any reason for the period 1 Jan 2019 to date.

6. Please provide details (including correspondence, minutes or notes) of any meetings held between Fergus Ewing or on his behalf (including his constituency staff or his ministerial office) and the Atlantic Salmon Trust and Fisheries Management Scotland for any reason 

7. Please provide details (including correspondence, minutes or notes) of any meetings held between Roseanna Cunningham or on her behalf (including her constituency staff or her ministerial office) and the Atlantic Salmon Trust and Fisheries Management Scotland for any reason

8. Please provide any information held by the Scottish Government which includes the terms or refers to in anyway, the Atlantic Salmon Trust and Fisheries Management Scotland for any reason for the period 1 Jan 2019 to date

Response

As the information you have requested is ‘environmental information’ for the purposes of the Environmental Information (Scotland) Regulations 2004 (EIRs), we are required to deal with your request under those Regulations. We are applying the exemption at section 39(2) of the Freedom of Information (Scotland) Act 2002 (FOISA), so that we do not also have to deal with your request under FOISA.

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, because there is no public interest in dealing with the same request under two different regimes. This is essentially a technical point and has no material effect on the outcome of your request.

On 12 June 2020, we notified you that we had extended the time for compliance by a further period of 20 working days because the volume and complexity of the information requested made it impracticable to comply with the request within the original 20 working day period. On the same day, you asked us to review our decision to do so. We have now completed our review of that decision, as set out in Annex B.

I enclose a copy of some of the information you requested.
While our aim is to provide information whenever possible, in this instance the Scottish Government does not have some of the information you have requested. Therefore we are refusing your request under the exception at regulation 10(4)(a) of the EIRs. The reasons why that exception applies are explained in Annex A to this letter.

While our aim is to provide information whenever possible, in this instance we are unable to provide some of the information you have requested because exceptions under regulations 10(4)(b) (request is manifestly unreasonable), 10(4)(d) (material in course of completion), 10(4)(e) (internal communications) and 11(2) (personal information) of the EIRs applies to that information. The reasons why these exceptions apply are explained in Annex A to this letter.

Information provided outwith the EIRs
Since your previous requests the West Coast Smolt Tracking Project was delayed in its inception due to the COVID 19 lockdown. A programme of work is now being considered for the start of the project in 2021. Work on the Wild Salmon Strategy has been subject to a delay to enable us to respond to COVID 19 crisis.

Annex A: reasons why exceptions apply
The Scottish Government does not have the information
Under the terms of the exception at regulation 10(4)(a) of the EIRs (information not held), the Scottish Government is not required to provide information which it does not have. The Scottish Government does not have some of the information you have requested concerning the constituency staff of the Cabinet Secretary for Rural Economy and Tourism and the Cabinet Secretary for Environment, Climate Change and Land Reform, because their constituency offices deal with correspondence on behalf of those Ministers in their capacity as MSPs, not as members of the Scottish Government.  Information held by constituency offices is accordingly not held by the Scottish Government. 

This exception 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 exception. We have found that, on balance, the public interest lies in favour of upholding the exception. While we recognise that there may be some public interest in the information you have requested, clearly we cannot provide information which we do not hold.

Regulation 10(4)(b) (request is manifestly unreasonable)
Under the exception at regulation 10(4)(b) of the EIRs a public authority may refuse a request for information if it is 'manifestly unreasonable'. We consider that point 8 of your request (“Please provide any information held by the Scottish Government which includes the terms or refers to in anyway, the Atlantic Salmon Trust and Fisheries Management Scotland for any reason for the period 1 Jan 2019 to date”) is substantially similar in its scope to your previous requests (https://www.gov.scot/publications/foi-202000019153/ and https://www.gov.scot/publications/foi-202000019140/).

We consider that these previous requests cover the period mentioned in point 8 of this request. To the extent that there is a gap between the date of your most recent previous request and this request, any new information within scope is also within scope of points 1 to 7 of your email of 1 June 2020, and has been addressed in dealing with those points.
For these reasons, we consider that this aspect of your request (point 8) is a repeat of previous requests (as well as duplication within this request) and so it is manifestly unreasonable. Therefore, we are refusing it under regulation 10(4)(b).

This exception 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 exception. We have found that, on balance, the public interest lies in favour of upholding the exception. While we recognise that there may be some public interest in information about our work with Fisheries Management Scotland and the Atlantic Salmon Trust, this is outweighed by the public interest in ensuring the efficient and effective use of public resources by not complying with an information request which is substantially similar to ones which we have complied with previously.

Advice and assistance
You may be interested to know we responded to a substantially similar request under the EIRs on 23 June 2020, covering the time period from 1 July 2018 to 28 February 2020:-
https://www.gov.scot/publications/foi-202000018350/
Regulation 10(4)(d) (material in course of completion, unfinished documents or incomplete data) An exception under regulation 10(4)(d) of the EIRs (unfinished or incomplete information) applies to some of the information you have requested because it is material which is still in the course of completion.

This exception 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 exception. We have found that, on balance, the public interest lies in favour of upholding the exception. We recognise that there is some public interest in release as part of open, transparent and accountable government.

However, this is outweighed by the public interest in ensuring that unfinished or incomplete information which is still in being worked on or is under active consideration is not disclosed when it might misinform the public or give a misleading impression of the Government’s view or position on the matter to which the information relates.
We consider that this information will be finished by 1 Sept 20 and so you may wish to make a further request for it at that time.

Regulation 10(4)(e) (internal communications)
An exception under regulation 10(4)(e) (internal communications), of the EIRs applies to some the information you have requested because it is internal communication between officials about the West Coast Salmon Smolt Tracking Project and/or the Wild Salmon Strategy. This exception 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 exception. We have found that, on balance, the public interest lies in favour of upholding the exception. We recognise that there is some public interest in release as part of open, transparent and accountable government, and to inform public debate. However there is a greater public interest in high quality policy and decision-making, and in the properly considered implementation and development of policies and decisions. This means that Ministers and officials need to be able to consider all available options and to debate those rigorously, to fully understand their possible implications. Their candour in doing so will be affected by their assessment of whether the discussions on West Coast Salmon Smolt Tracking Project will be disclosed in the near future, when it may
undermine or constrain the Government’s view on that policy while it is still under discussion and development.

Regulation 11(2) (personal information)
An exception under regulation 11(2) of the EIRs (personal information applies to some of the information requested because it is the personal information of third parties (names, email addresses, phone and fax numbers) 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 exception 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 exception.

Annex B: review of decision to extend timescales
I note that you requested a review of our decision to extend the deadline by 20 days to 27 July 2020.
Given the broadness of your query, our trawls for relevant material resulted in a large number of documents. When it became evident that the level of material warranted additional time to consider, we advised you of our revised response date. Apologies for any inconvenience, I hope the response below is helpful.

Due to the size of the files we are unable to upload the documents referred to above.
If you wish to consider, please contact us at the address below and we will be happy to provide.

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
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