Publication - FOI/EIR release

Roseanna Cunningham’s MSP 2017 visit to Montrose: EIR review

Published: 7 Mar 2019

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

Published:
7 Mar 2019
Roseanna Cunningham’s MSP 2017 visit to Montrose: EIR review
FOI reference: FOI/18/02657 Review
Date received: 18 Dec 2018
Date responded: 6 Mar 2019
Information requested

 

All internal and external correspondence, letters, emails, notes, minutes and briefings between the Scottish Government Minsters, Special Advisors and Civil Servants and Marine Scotland pertaining to the meeting between Roseanna Cunningham, the Cabinet Secretary for the Environment and Angus Council, The Montrose Golf Club and the Montrose Port Authority in August 2017, refered to in written answer S5O-02387.

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.   However the response due on 22nd October was only extended by 10 working days to the 5th November and was completed within this 10 working day extension by 2nd November following a notification of the extension of the deadline. 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. However, 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 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.

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 (as well as the fact that his name is obviously known to you). Under this practice the details of MSPs and MPs should also be released.

We would also request a copy of the minutes of the meeting which is referred to in S50-02387, in this FoI request.  If there is no minute of this meeting, we would expect that this be highlighted to us.  This has not been the case.

 The minutes you refer to relate  to a meeting held on 15th of August 2018 (?) between Roseanna Cunningham, the Cabinet Secretary for the Environment and Angus Council, The Montrose Golf Club and the Montrose Port Authority.  No minutes were found following searches of SG records.

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 the information you have requested because no minute of the meeting exists.

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 a meeting between Roseanna Cunningham, the Cabinet Secretary for the Environment and Angus Council, The Montrose Golf Club and the Montrose Port Authority, clearly we cannot provide information which we do not hold.

 

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