Publication - FOI/EIR Release

Montrose Port Authority disposal licence: EIR review

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

Published:
12 Mar 2019
Montrose Port Authority disposal licence: EIR review
FOI reference: FOI/18/02488 Review
Date received: 18 Dec 2018
Date responded: 8 Mar 2019
Information requested

 

All internal and external correspondence, letters, emails, notes and briefings between the Scottish Government Minsters, Special Advisors and Civil Servants and Marine Scotland pertaining to the renew of the Montrose Port Authority disposal licence from 1st July 2017 until the present date.

And clarified on 20th September 2018 that “external correspondence” related to: 

“any information to/from any third party (i.e. not the Scottish Government or Montrose Port Authority).”

Response

 

Further to your letter of 18th December, I have now completed my review of our response to your request under the Environmental Information (Scotland) Regulations 2004 (EIRs) for information on the Montrose Port Authority under request FoI-18-02657. 

I would like to take this opportunity to apologise for the late response to this review.  This was due to an internal administrative error whereby your email requesting a review appears to have been deleted in error, and Marine Scotland are reviewing our procedures to ensure that this is avoided in future. I appreciate that this delayed the length of time for us to respond to your request for a review and am sorry that it happened.

I have concluded that the original decision should be confirmed with modifications.

You raised a number of points in your request for review that I will deal with in turn.

 

You have asked for an explanation over the length of time which it took to process this request – as you believe that it was unreasonable.

The EIRs process can be extended by 20 working days when the complexity and volume of the information makes it impractical for a public authority to respond within the original deadline.   We considered the material related to your request as being complex and voluminous, complex because of the different types of information, the fact that the process was still live around the changing situation in Montrose Harbour and voluminous because of the large number of documents associated with Montrose Port Authority application which had to be reviewed to locate the relevant information and ensure personal data was protected.   We notified you of our intension to extend the deadline of 11th October by a further 20 working days to 8th November and responded as soon as possible within that extended deadline (on the 2nd November) as we are required to do under the EIR’s. Therefore, we do not consider that the length of time taken to respond to your request was unreasonable.

 

Regulation 10 (4) (d)

Montrose Port Authority take the view that it is reasonable for them to have the right of sight of any information held on them, whether it is unfinished or incomplete.

I have considered our original application of regulation 10(4)(d) and concluded that it was incorrectly applied. This is because no further work will be done to the information that this exception was applied to, and therefore we cannot consider it as being draft, or unfinished. As a result, I am now able to release some further information to you, and that is enclosed with this letter. You will note that some information has been redacted as out of scope of your request as this information does not relate to MPA’s licence renewal application. In addition, a small amount of information has been redacted under the terms of regulation 10(4)(e) – Internal Communications.This exception applies because the information is internal communication between officials about the Montrose Port Authority’s application for a marine licence under Part 4 of The Marine (Scotland) Act 2010 for the deposit in Lunan Bay of 738000 wet tonnes of material dredged from Montrose Harbour over a 3 year period.

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 the Montrose Port Authority’s application for a marine licence under Part 4 of The Marine (Scotland) Act 2010 for the deposit in Lunan Bay of 738000 wet tonnes of material dredged from Montrose Harbour over a 3 year period will be disclosed in the near future, when it may undermine or constrain the Government’s view on that issue while it is still under discussion and a live issue because the application is still to be decided.

 

Regulation 10 (4) (e) Internal Communications.

Without sight of these internal communications it is impossible for us to take a view on the "public interest level".  Freedom of Information exists to make this determination and we would like the opportunity to do so, especially since these communications refer to Montrose Port Authority.

It is for the public authority handling the request to decide where the public interest in the release of information lies. FOISA and the EIRs give the public a right to request information and receive information; however the latter does not follow if the public authority, in certain circumstances, considers information to be exempt and where applicable, finds that the public interest lies in favour of withholding. FOISA and the EIRs do not confer a right upon the public to determine the balance of the public interest test, nor whether any exemptions/exceptions apply.  

 

Regulation 10(5)(f)

We believe that any information which is held on file which pertains to Montrose Port

Authority, we should have access to.

Having reconsidered the information previously withheld under this exception, and taking account of your view, I am satisfied that this exception has been correctly applied to a small amount of information for the reasons given in our initial response.

 

Regulation 11(2)

We believe that personal detail does not extend to an individual's name and position within an organisation.  This is information which can reasonably be found in the public domain and we believe that this should be identified within the Freedom of information response.  Moreover, we note that our chief executive's email has not been redacted.

Having reviewed the information redacted under this exception, I am satisfied that this exception has been applied correctly to the names (and job titles where they can identify individuals) of junior civil servants. These are individuals whose information is not in the public domain and it is right that their details should be withheld under the EIRs. However, the names of senior civil servants, and chief executives, who we consider to be of a similar seniority to senior civil servants, are released as their information is either in the public domain or they are of a senior standing such that they cannot expect their names and job titles to be withheld. This is why your chief executive’s name has not been withheld. Under this practice the details of MSPs and MPs should also be released.

 

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