Publication - FOI/EIR release

Aberdeen Harbour expansion project: EIR release

Published: 4 May 2020

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

Published:
4 May 2020
Aberdeen Harbour expansion project: EIR release
FOI reference: FOI/202000020066
Date received: 11 Mar 2020
Date responded: 1 May 2020
Information requested

Any and all information held from the period from 22 November 2019 to the date of this letter relating to the following licences, including but not limited to all correspondence among MS-LOT and/or Aberdeen Harbour Board and/or Dragados UK Limited or their respective agents:

1. Licence 05964/19/0 - Capital Dredging and Dredge Spoil Disposal - Nigg Bay, Aberdeen;

2. Application number 07035 - Marine Licence - Capital Dredging and Sea Deposit- Nigg Bay, Aberdeen;

3. Application number 07161 - Marine Licence - Construction of new harbour and use of explosive substances - Nigg Bay Aberdeen;

4. MS EPS 28 2019 0- European Protected Species Licence- Harbour Expansion - Nigg Bay;

5. MS EPS 06/2018/0 - European Protected Species licence - Nigg Bay, Aberdeen; and

6. MS EPS 27/2017/0 - European Protected Species licence - Nigg Bay, Aberdeen.

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.

1. I am providing copies of some of the information you have requested. The documents have been provided electronically by attachment to the email accompanying this letter.

2. Some of the information you have requested is already publicly available from the Scottish Government website at the following web link: https://www.gov.scot/publications/foi-202000019074/.
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. You have already been provided full
access to all documents released under a recent and related FOI reference: FOI/202000019074 (an Information request and response under the Environmental Information (Scotland) Regulations 2004).

3. 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. Therefore we are refusing part of your request under the exception at regulation 10(4)(a) of the EIRs.
The reason why this exception applies is provided in the Annex below.

4. 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 an exception under regulation 10(5)(b) of the EIRs applies to that information (The course of justice). The reason why this exception applies is explained in the Annex to this letter.

5. 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 an exception under regulation 11(2) of the EIRs applies to that information (personal information of a third party). The reasons why this exception applies is explained in the Annex to this letter.

ANNEX
REASONS FOR NOT PROVIDING INFORMATION

Exceptions applied:
(i) Regulation 10(4)(a) – Information not held - Under the terms of the exception at regulation 10(4)(a) of the EIRs, 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 we hold no information/correspondence from the period 22 November 2019 to 11 March 2019 (the date of your letter) relating to the following licences:
- MS EPS 06/2018/0 - European Protected Species licence - Nigg Bay, Aberdeen; and
- MS EPS 27/2017/0 - European Protected Species licence - Nigg Bay, Aberdeen.
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 European Protected Species licences, clearly we cannot provide information which we do not hold.

(ii) Regulation 10(5)(b) – The course of justice – A request for environmental information may be refused where the disclosure of the information would, or would be likely to, substantially prejudice: (i) the course of justice (including law enforcement); (ii) the ability of a person to receive a fair trial; (iii) the ability of any public authority to conduct an inquiry of a criminal or disciplinary nature.

This exception applies to investigations or enquiries conducted by any public authority and may relate to current proceedings or to proceeding likely to take place in the future. It could include any information which, if disclosed, could prejudice the enforcement or appropriate administration of law, which includes the prevention, investigation or detection of a crime, or the apprehension or prosecution of offenders.

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 a disclosure would not, or would not be likely to, cause substantial prejudice.

(iii) Regulation 11(2) – To the extent that environmental information requested includes personal data of which the applicant is not the data subject and in relation to which either the first or second condition set out in paragraphs (3) and (4) is satisfied, a Scottish public authority shall not make the personal data available.

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

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.

Contact

Please quote the FOI reference
Central Enquiry Unit
Email: ceu@gov.scot
Phone: 0300 244 4000

The Scottish Government
St Andrews House
Regent Road
Edinburgh
EH1 3DG