Montrose Port Authority disposal licence: EIR release

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).”

As the information you have requested is ‘environmental information’ for the purposes of the Environmental Information (Scotland) Regulations 2004 (EISRs), 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.

I enclose a copy of most of the information you requested.

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)(d) (unfinished or incomplete information), 10(4)(e) (internal communications), 10(5)(f)(substantial prejudice to interests of person who provided the information) and 11(2) (personal information of a third party) of the EIRs apply to that information. The reasons why these exceptions apply are explained below.

Exceptions that apply.

Exceptions under regulations 10(4)(d) (unfinished or incomplete information), 10(4)(e) (internal communications), 10(5)(f)(substantial prejudice to interests of person who provided the information) and 11(2) (personal information of a third party) of the EIRs apply to some of the information you have requested.

Regulation 10(4)(d) – unfinished or incomplete information.

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 unfinished draft documents. 

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 was or is 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.  

Regulation – 10 (4)(e) (internal communications).

An exception under regulation 10(4)(e) of the EIRs (internal communications) applies to some of the information you have requested because it is internal communication between Scottish Government Ministers and/or officials.

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 properly considered implementation and development of policies and decisions.

Regulation 10(5)(f) – substantial prejudice to interests of person who provided the information.

An exception under regulation 10(5)(f) of the EIRs (substantial prejudice to interests of person who provided the information) 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 interests of the individual who provided that information to the Scottish Government.They:

• were not under any legal obligation to give us that information;
• did not supply it in circumstances in which it could, apart from the EIRs, be made available; and
•  have not consented to disclosure.

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 a public interest in disclosing information as part of open and transparent government.  However, there is a greater public interest in protecting the interests of anyone who provides the Scottish Government with information on a confidential basis. Disclosing such information against the express wishes of the stakeholder is likely to undermine their trust in the Government and make them reluctant in future to share information with us on issues. This would significantly impair the Scottish Government’s ability to develop policies and make decisions on the basis of fully informed advice and evidence. This would not be in the public interest.

Regulation 11(2) – personal information of a third party.

An exception under regulation 11(2) of the EIRs (personal information of a third party) applies to some of the information requested because it is personal data of a third party and disclosing it would contravene the data protection principles in Schedule 1 to the Data Protection Act 1998. 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.