Publication - FOI/EIR release

Correspondence with Crown Estates Scotland on ScotWind: EIR release

Published: 12 December 2023
Directorate: Marine Directorate
Topic: Public sector
FOI reference: 202200312008
Date received: 20 July 2022
Date responded: 3 October 2022

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

Information requested

All records of correspondence and notes of meetings between the Scottish Government (including Marine Scotland) and Crown Estate Scotland between 1 February 2021 and 24 March 2021 which relate to ScotWind, including such material as relates to the Scottish Government being informed that the leasing process was being paused (as announced on 11 February 2021), any advice on process and implications for broader offshore wind policy which was provided by the Scottish Government, and information which was provided by CES to the Scottish Government on the progress of the review.

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.

Response

A copy of most of the information you requested is attached.

An exception under regulation 11(2) of the EIRs (personal information) applies to some the information requested because it is personal data of a third party 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.

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(5 (e) (prejudice substantially the confidentiality of commercial or industrial information where such confidentiality is provided for by law to protect a legitimate economic interest), and 10(5)(f) (prejudice substantially the interests of the person who provided that information). The reasons why that exception(s) applies are explained below.

An exception under regulation 10(5)(e) of the EIRs applies to some of the information you have requested. This exception applies because disclosure of this particular information would, or would be likely to, prejudice substantially the confidentiality of commercial information provided by Crown Estate Scotland and thus cause substantial harm to their commercial interests. At this stage in the ScotWind process, which is not yet complete (with the ScotWind leasing Clearing process still underway and likely to conclude at the end of November when Option Agreements are signed, and therefore still at a heightened risk of challenge) they could lead to challenge and therefore compromise delivery of the whole ScotWind round and cause economic damage to Scotland.

An exception under regulation 10(5)(f) of the EIRs applies to some of the information you have requested. This exceptions applies because disclosure of this particular information would, or would be likely to, prejudice substantially the interests of Crown Estate Scotland and third parties who provided information to Crown Estate Scotland.

Both of these exceptions are 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 an open and transparent government. However, this is outweighed by the public interest in protecting the commercial interests of Crown Estate Scotland and the companies which have bid but not yet entered into contracts for ScotWind leases.

However, I would like to add that whilst some of the items you have requested have not been provided in this instance, we understand that Crown Estate Scotland have publication of ScotWind documentation under ongoing review in order to aid transparency and proactive publication. A range of information can already be accessed here. As ScotWind remains a live commercial process until approximately the end of November 2022 (by when Clearing option agreements are expected to have been signed), Crown Estate Scotland advise us that further documentation is likely to be released by the end of December 2022.

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.