Publication - FOI/EIR release

Inshore Fisheries Pilot for the Inner Sound: EIR release

Published: 11 May 2020
Directorate: Marine Directorate
Part of: Marine and fisheries, Public sector
FOI reference: FOI/202000019057
Date received: 4 March 2020
Date responded: 4 May 2020

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

Information requested

The application by the Inner Sound Management Group (ISMG) for an Inshore Fisheries Pilot for the Inner Sound of Skye (the Inner Sound Pilot).

Response

Your request was set out in ten parts, each of which is addressed below.

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.

(1) A copy of all the responses to the Consultation on Proposed Sites to Host Inshore Fisheries Pilots 2017.
(9) A copy of all the responses to the Inshore Fisheries Pilot: Inner Sound of Skye A Consultation.
The information you have requested is available from the Scottish Government website through the below indicated links: -

A copy of all the responses to the Consultation on Proposed Sites to Host Inshore Fisheries Pilots 2017 – Published online under https://consult.gov.scot/marine-scotland/inshore-fisheries-pilots-2017/
A copy of all the responses to the Inshore Fisheries Pilot: Inner Sound of Skye A Consultation – Published online under https://consult.gov.scot/marine-scotland/inshore-fisheries-pilot-inner-sound-of-skye/

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. If, however, you do not have internet access to obtain this information from the websites listed, then please contact me again and I will send you a paper copy.

Part 2, 3, 4, 6, 7 and Part 10
I enclose a copy of some of the information you requested. Please find within the PDF document attached information including correspondence and documents relating to your queries. For ease I refer to elements of the following queries: -

(2) Copies of any other correspondence* between Marine Scotland and third parties, pertinent to consideration by Marine Scotland of the Inner Sound Pilot.

(3) Copies of any internal correspondence within Marine Scotland (including the Marine Analytical Unit) regarding consideration of the Inner Sound Pilot

(4) Copies of any correspondence between Marine Scotland and any other part of the Scottish Government, to include SNH and SEPA, regarding consideration of the Inner Sound Pilot.

(10) A copies of any reports, internal meeting notes or minutes generated by Marine Scotland arising out of the Inshore Fisheries Pilot: Inner Sound of Skye A Consultation.

Please note that for your 6th and 7th queries “Copies of any reports (internal or external) commissioned to assist with consideration of the applications for Inshore Fisheries Pilots” and “Copies of any documentation used by Marine Scotland to ‘score’ the 6 applications for Inshore Fisheries Pilots against set criteria, together with notes (if any) regarding how scoring was to be applied.” The scores are contained within pages 27 – 30 of the attached document and these were the scoring used to decide which of the pilots should go forward for public consultation.
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)(e) Internal Communications; 10(5)(e) Substantial prejudice to confidentiality of commercial or industrial information; 10(5)(f) Substantial prejudice to the interests of a third party and 11(2) Third party personal data of the EIRs applies to that information. The reasons why these exceptions apply are explained in the Annex to this letter.

Part 5 and Part 8
(5) A note of all meetings at which the Inner Sound Pilot was discussed by Marine Scotland officers and copies of minutes of those meetings.

(8) Copies of Alan Gibb’s internal review of the original review of the decision to refuse the Inner Sound Pilot (as promised by Mr Gibb at the meeting held with ISMG and others at the Kyleakin Hall in July 2018).

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 some of the information you have requested, the reasons why we don’t have the information are explained below.
The Scottish Government does not hold a record of meetings at which the Inner Sound Pilot was discussed by Marine Scotland officers. Where meetings have taken place, the discussions were informal in nature to explore a way forward between stakeholders and Marine Scotland officials. No minutes were taken.

You may however to find it helpful to note that formal minutes in which the Inner Sound was discussed are held by the relevant Regional Inshore Fisheries Group (RIFG), which falls under the West Coast RIFG.
Records for these minutes can be publically found online through the RIFG website http://www.ifgs.org.uk/rifg_wc/rifg_wc_meetings/?LMCL=RS_6ND.
It may also interest you to know that the Inner Sound Consultation was mentioned at the March 2019 meeting to remind members of the closing date. This can be found through searching the Meeting archives of the RIFG website however, in an attempt to aid your search, the meeting I refer to can be found under http://www.ifgs.org.uk/files/7215/6138/2370/rifg-wc-2019-03-27-minute-draft.pdf.

In relation to copies of Alan Gibb’s internal review of the original review of the decision to refuse the Inner Sound Pilot (as promised by Mr Gibb at the meeting held with ISMG and others at the Kyleakin Hall in July 2018), this information does not exist as this review was undertaken by reviewing documentation and having verbal discussion with colleagues about findings and recommendations. Therefore we are refusing your request under the exception at regulation 10(4)(a) of the EIRs.
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 the internal review on the original review on the decision to refuse the Inner Sound Pilot, clearly we cannot provide information which we do not hold.

Annex
REASONS FOR NOT PROVIDING INFORMATION
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 about the Inshore Fisheries Pilots of 2017 and the Inshore Fisheries Pilot: Inner Sound of Skye.
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 Inshore Fisheries Pilots of 2017, Inshore Fisheries Pilot: Inner Sound of Skye and the policy directions surrounding these consultations will be disclosed in the near future, when it may undermine or constrain the Government’s view on that policy and the connected issues while it is still under discussion and development.

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 individual Scottish Ministers about Inshore Fisheries Pilots of 2017 and the Inshore Fisheries Pilot: Inner Sound of Skye.
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 allowing Ministers a private space within which issues and policy positions can be explored and refined, until the Government as a whole can reach a decision/adopt a policy that is sound and likely to be effective. This private thinking space also allows for all options to be properly considered, so that good policy decisions can be taken. Premature disclosure is likely to undermine the full and frank discussion of issues between Ministers, which in turn will undermine the quality of the decision making process.

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 about press lines and lines to take.
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, transparent and accountable government, and to inform public debate. However, there is a greater public interest in allowing a private space within which officials can provide free and frank advice and views to Ministers in policy briefing, press lines and lines to take. It is clearly in the public interest that Ministers can properly provide sound information to Parliament (to which they are accountable), and robustly defend the Government’s policies and decisions. They need full and candid advice from officials to enable them to do so. Premature disclosure of this type of information could lead to a reduction in the comprehensiveness and frankness of such advice and views in the future, which would not be in the public interest.

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 legal advice and disclosure would breach legal professional privilege.
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, transparent and accountable government, and to inform public debate. However, this is outweighed by the strong public interest in maintaining the right to confidentiality of communications between legal advisers and clients, to ensure that Ministers and officials are able to receive legal advice in confidence, like any other public or private organisation.

Regulation 10(5)(e) – substantial prejudice to confidentiality of commercial or industrial information
An exception under regulation 10(5)(e) of the EIRs (substantial prejudice to confidentiality of commercial 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 confidentiality of commercial information provided by individual Scottish fishermen and thus cause substantial harm to their commercial interests. Disclosing this information would be likely to give personal earnings of individuals thus disadvantaging them against their competitors and may influence their cooperation and honesty in communications with Marine Scotland officials in the future.
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, and to help account for the expenditure of public money. However, there is a greater public interest in protecting the commercial interests of companies which tender for Scottish Government contracts, to ensure that we are always able to obtain the best value for public money.

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 organisations and individuals 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, such as the organisations and individuals, who provide 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 such as their concerns or aspirations for the Inshore Fisheries Pilots and Inner Sound of Skye consultations. 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) – applicant has asked for personal data of a third party
An exception under regulation 11(2) of the EIRs (personal information) 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

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