- 8 May 2019
Date received: 21 Mar 2019
Date responded: 7 May 2019
1. A copy of any legal opinion/advice Marine Scotland has received (or is aware or in possession of), in reference to Marine Scotland's(& Scottish Government) obligations under the aforementioned regulations to conduct unannounced inspections of Marine Cage Fish Farms (MCFF). This could include, but not be limited briefings to ministers (and any others within Scottish Government) on determining the number of unannounced inspections that would need to be conducted in-order to remain compliant. The reply should include, and outline, reference to the specific sections of the aforementioned Acts from which it has been determined the obligations arise.
2. Please confirm that in 2018 Marine Scotland carried out a single unannounced inspection of MCFFs in Scotland? If not please provide the correct number?
3. Please provide details of the methodology for determining the number of unannounced inspections Marine Scotland will make in a calendar year? This should include a list of consultees and decision makers.
4. Please provide details of how Marine Scotland determines which sites will receive an unannounced inspection? This should include a list of consultees and decision makers.
5. Please provide a list of all parties who would be notified, once it is determined that a specific MCFF will receive an unannounced inspection?
6. Port Na Cro MCFF received an unannounced inspection in 2018. Please provide all communications from 2018 held by Marine Scotland (be they email, telephone, letter or any other form) which feature the term Port Na Cro (or any other name this site is known by) either sent or received by staff within Marine Scotland.
7. Please confirm whether or not ministers (or anyone in their staff or representing their interests) are briefed on any aspect of the unannounced inspection of MCFF. If so please provide details of those briefings and communications in 2018.
In relation to the points you raise we will provide specific responses to points 1, 2, 6 and 7 and a collective response to points 3, 4 and 5.
1. Legal opinion/advice on unannounced inspections.
Marine Scotland does not hold any legal opinion or advice concerning unannounced inspections. Therefore, we do not hold any information in relation to this part of your request, and we are refusing the same under the exception at regulation 10(4)(a) of the EIRs. The reasons why that exception applies are explained in the Annex to this letter.
2. Confirmation that a single unannounced inspection took place in 2018.
We can confirm that two unannounced inspections were conducted in 2018. One of these was undertaken at a freshwater fish farm site, the other at Port Na Cro, a seawater fish farm site.
3. Methodology for determining the number of unannounced inspections.
4. Details of how Marine Scotland determines which sites will receive unannounced inspections.
5. A list of all parties notified once it is determined that a specific site will receive an unannounced inspection.
We do not hold any information in relation to parts 3, 4 and 5 of your request, and we are refusing the same under the exception at regulation 10(4)(a) of the EIRs. The reasons why that exception applies are explained in the Annex to this letter. However, we can provide the following explanation with regards to the points above.
The Fish Health Inspectorate have always conducted unannounced inspections, although these have only be logged against a specific case type since 2011. The number of unannounced inspections fluctuates on an annual basis. There is no set methodology for determining the number or process of identifying specific sites which will be subject to unannounced inspection. In general, there are no notifications made, out with the FHI group, regarding the conducting of any unannounced inspection.
We recognise the requirements of the legislation which through Regulation (EC) No 882/2004 on official controls, under Article 3 – 2. stipulates that: Official controls shall be carried out without prior warning, except in cases such as audits where prior notification of the feed or food business operator is necessary. Please be aware that Regulation (EC) No 882/2004 will be replaced in due course by the Official Controls Regulation (EU) 2017/625 which under Article 9 – 4. stipulates that: Official controls shall be performed without prior notice, except where such notice is necessary and duly justified for the official control to be carried out. As regards official controls upon request from the operator, the competent authority may decide whether the official controls are to be performed with or without prior notice. Official controls with prior notice shall not preclude official controls without prior notice.
There is a recognition that the work undertaken by Marine Scotland’s Fish Health Inspectorate requires a level of co-operation from industry stakeholders, specifically fish and shellfish farm site staff, to facilitate with delivering the programme of aquatic animal health surveillance. Largely, it is necessary to inform site operators of our intended surveillance activity and it is widely recognised that the assistance provided from site operating staff is essential in order to ensure the effective use of resources and to ensure appropriate safety of inspectors when conducting visits.
6. Communications held by Marine Scotland that feature the term Port Na Cro (or any other name by which the site is known) sent or received by Marine Scotland staff in 2018.
You clarified that any such communications should not be limited to the subject of Fish Health Inspectorate inspections and related activity.
Please find enclosed a number of such communications. You will note that some information has been redacted from these communications because an exception under 11(2) (personal data) of the EIRs applies to this information. The reasons why this exception applies are explained in the Annex to this letter. While we try to provide information wherever possible, in this instance we are unable to provide some of the information you have requested because an exception under regulation 10(5)(f) (substantial prejudice to the interests of the person who provided the information) of the EIRs applies to that information. The reasons why that exception applies are explained in the Annex to this letter.
Further, some of the information, which falls within the scope of this part of your request, is already available online. Some communications relate to FOISA/EIR requests, and all responses to these are published on the Scottish Government website - https://www.gov.scot/publications/ (filter on Publication Type – FOI/EIR release). We have some communications that feature the term Port Na Cro that relate to a planning application for the enlargement of a marine fish farm (not Port Na Cro), these are available through the Argyll and Bute council website – https://publicaccess.argyll-bute.gov.uk/online-applications/applicationDetails.do?activeTab=externalDocuments&keyVal=P1Z8UJCH0GD00.
We also hold a copy of a report that was sent to us by Salmon & Trout Conservation Scotland that features the term Port Na Cro. This report is available on the S&TCS website – https://www.salmon-trout.org/wp-content/uploads/2018/01/NASCO-Report-FINAL-1.pdf.
We hold one line of information that was emailed to Marine Scotland that features the term Port Na Cro in relation to mortalities. Mortality information is available through Scotland’s Aquaculture website - http://aquaculture.scotland.gov.uk/ - and through the Marine Scotland pages on the SG website –
https://www2.gov.scot/Topics/marine/Fish-Shellfish/FHI/CaseInformation. This website also contains a copy of the Fish Health Report issued as a result of the visit made to Port Na Cro in 2018.
Further information relating to unannounced inspections is available on the SG website –
Under regulation 6(1)(b) of the EIRs, we do not have to give you information which is already publicly available and easily accessible to you in another form or format.
7. Confirmation as to whether or not Ministers (or anyone in their staff or representing their interests) are briefed on any aspect of the unannounced inspection of MCFFs. If so please provide details of those briefings and communications in 2018.
Ministers and their staff are not briefed in advance of unannounced inspections of MCFFs. No ministerial briefing was given following the unannounced inspection conducted at Port Na Cro. Therefore we do not hold any information in relation to this part of your request, and we are refusing the same under the exception at regulation 10(4)(a) of the EIRs. The reasons why that exception applies are explained in the Annex to this letter.
REASONS FOR NOT SUPPLYING INFORMATION
The Scottish Government does not hold 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. The Scottish Government does not have the information you have requested because, as explained above, we have not sought or obtained legal advice on the number of unannounced inspections that should be carried out, nor are Ministers or their staff briefed on unannounced inspections of fish farm sites. Neither do we have recorded information on how numbers and sites for unannounced inspections are decided.
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 this subject, clearly we cannot provide information which we do not hold.
An exception under regulation 11(2) of the EIRs (personal information) applies to some of the information requested (names and contact details of individuals) 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.
A further exception under regulation 10(5)(f) of the EIRs (substantial prejudice to interests of person who provided the information) applies to a small part of information you have requested – this relates to the returns for the Port Na Cro site for the 2017 Annual Fish Farms Production Survey. This exception applies because disclosure of this particular information would, or would be likely to, prejudice substantially the interests of the aquaculture companies operating in Scotland 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. Further, the public interest in the release of the information is partly met by its publication in aggregate form. However, there is a greater public interest in protecting the interests of anyone, such as aquaculture companies operating in Scotland, who provide the Scottish Government with information on a confidential basis. Disclosing such information against the express wishes of the stakeholders is likely to undermine their trust in the Government and make them reluctant in future to share information with us on aquaculture production. This would mean that we would no longer be able to publish the Annual Fish Farm Production Survey, the continuation of a unique dataset that is almost 40 years old. This would not be in the public interest.
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.
Please quote the FOI reference
Central Enquiry Unit
Phone: 0300 244 4000
The Scottish Government
St Andrews House