Compliance monitoring and regulation of use of high explosives in Bay of Nigg: EIR release

FOI reference: FOI/18/02989
Date received: 18 October 2018
Date responded: 22 November 2018

 

 

You asked, “Following the recent decision to resume the use of UW (High) explosive charges in the Bay of Nigg, I request the following documents under FOI:

1. A full copy(s) of the autopsy/veterinary report(s) on the dead Grey seal recently found in the Bay of Nigg;
2. A full copy of a Compliance Monitoring Report (Charge size, Sound and Blast Energies and Impulse Pressures etc) produced by AHB and its contractor's as part of the investigation into the seal's death; 
3. A full copy of the minutes of the meeting(s) that led to the determination of the most likely cause of death of the seal, and the associated levels of blast noise (DBht) and energy (PPV/PSI) compliance leading up to the incident;
4. A full copy of the following: Revision 6: Blasting Methodology Environmental Mitigation Marine Mammals;
5. A full copy of the following: Revision 6: Hydrophone Appendix Sheets;
6. A full copy of a recent consultation paper: Bubble Curtain, C-POD, Blasting, Underwater noise and PAM Methodologies;
7. A full copy of the Final Report on the Acoustic Tracking of Adult Salmon in the Bay of Nigg that was conducted by Glasgow University in 2017 (as required under the CEMD).”

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.

I enclose a copy of some of the information you requested. You asked for, “A full copy of the following: Revision 6: Blasting Methodology Environmental Mitigation Marine Mammals” – Revision 6 was not approved due to being a draft, thus Revision 7 is provided; “A full copy of the following: Revision 6: Hydrophone Appendix Sheets” – these don’t exist on their own, all hydrophone information is within the Ecofish.

UWN & PAM procedure Revision 7 which is provided; “A full copy of a recent consultation paper: Bubble Curtain, C-POD, Blasting, Underwater noise and PAM Methodologies” – no such document exists, this information is contained within the Blasting Methodology – Environmental Controls Marine Mammals Revision 7 and the Ecofish UWN & PAM procedure Revision 7 which are provided; “A full copy of the Final Report on the Acoustic Tracking of Adult Salmon in the Bay of Nigg that was conducted by Glasgow University in 2017” – this is provided but note that the report was sent in 2018 rather than 2017.

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, specifically data relating to a full copy(s) of the autopsy/veterinary report(s), a full copy of a Compliance Monitoring Report, and a full copy of the Minutes of the meeting(s) that led to the determination of the most likely cause of death. 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 below.

Additionally, we are unable to provide some of the information you have requested because exceptions under regulations 10(4)(d) (Material in the course of completion, unfinished documents, or incomplete data), and 11(2) (Personal data relating to third party) of the EIRs apply to that information. The reasons why those exceptions apply are explained below.

Reasons for not providing information 

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.

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, clearly we cannot provide information which we do not hold.

Exceptions that apply.

Exceptions under regulations 10(4)(d) (Material in the course of completion, unfinished documents, or incomplete data) and 11(2) (Personal data relating to third party) of the EIRs apply to some of the information you have requested.

Regulation 10(4)(d) –  material in course of completion, unfinished documents or incomplete data.

An exception under regulation 10(4)(d) of the EIRs applies to some of the information you have requested because the material is in draft or part f ongoing investigations.

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 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 11(2) – personal data relating to third party.

An exception under regulation 11(2) of the EISRs 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 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.

About FOI