Publication - FOI/EIR release

Marine Mammal Protection Act: EIR release

Published: 29 October 2020
Directorate: Marine Directorate
Topic: Marine and fisheries, Public sector
FOI reference: FOI/202000044610
Date received: 8 June 2020
Date responded: 3 September 2020

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

Information requested

1. On 3rd June, Mike Palmer, Deputy Director for marine planning and policy at Marine Scotland, stated to the ECCLR Committee that ‘In March—so, really very recently—we finally got written confirmation from the US authorities that they would require us to take legislative action by way of amending our licensing regime.’ http://www.parliament.scot/parliamentarybusiness/report.aspx?r=12674&mode=pdf (page 21 of PDF)

Under the terms of these regulations and the Freedom of Information (Scotland) Act 2002, please provide the written confirmation referred to by Mr Palmer, in electronic form.

2. Please also advise and assist me with identifying and providing (in electronic form) any other correspondence between Marine Scotland and the US authorities (including but not limited to NOAA and the NMFS), about the effect of the US Marine Mammal Protection Act on seal shooting by or on behalf of marine fish farms in the UK.

3. According to the American authorities the US National Marine Fisheries Service (NMFS) must ‘notify each harvesting nation that has such fisheries and request that within 90 days of notification the harvesting nation submit reliable information about the commercial fishing operations identified, including the number of participants, number of vessels, gear type, target species, area of operation, fishing season, and any information regarding the frequency of marine mammal incidental mortality and serious injury, including programs to assess marine mammal populations and laws, decrees, regulations, or measures to reduce incidental mortality and serious injury of marine mammals in those fisheries or prohibit the intentional killing or injury of marine mammals. NMFS would evaluate each harvesting nation’s submission.’ https://www.federalregister.gov/documents/2015/08/11/2015-19231/fish-and-fish-product-import-provisions-of-the-marine-mammal-protection-act

Please provide (in electronic form) the submission sent by the Scottish or UK authorities to the US authorities, as regards marine finfish aquaculture in Scotland, concerning ‘the number of participants, number of vessels, gear type, target species, area of operation, fishing season, and any information regarding the frequency of marine mammal incidental mortality and serious injury, including programs to assess marine mammal populations and laws, decrees, regulations, or measures to reduce incidental mortality and serious injury of marine mammals in those fisheries or prohibit the intentional killing or injury of marine mammals’.

4. Please also advise and assist me with identifying and providing (in electronic form) all relevant documents, including any correspondence between Marine Scotland and the US authorities (including but not limited to NOAA and the NMFS), about the effect of the US Marine Mammal Protection Act on the use of Acoustic Deterrent Devices by marine finfish farms in the UK., including the SalmonSafe Targeted Acoustic Startle Technology device manufactured by GenusWave.

5. Please also advise and assist me with identifying and providing (in electronic form) any other correspondence between Marine Scotland, SNH, Scottish Ministers, fish farming companies, the Scottish Salmon Producers’ Organisation, St Andrews University, or the developers of the SalmonSafe Acoustic deterrent/Targeted Acoustic Startle Technology device, manufactured by GenusWave, on the potential of these devices to disturb cetaceans.

Response

You have asked a number of questions in relation to the Marine Mammal Protection Act and aquaculture - seals, cetaceans and ADDs.

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 have provided a response to each of your questions in turn below:

1 On 3rd June, Mike Palmer, Deputy Director for marine planning and policy at Marine Scotland, stated to the ECCLR Committee that ‘In March—so, really very recently—we finally got written confirmation from the US authorities that they would require us to take legislative action by way of amending our licensing regime.’ http://www.parliament.scot/parliamentarybusiness/report.aspx?r=12674&mode=pdf (page 21 of PDF) Under the terms of these regulations and the Freedom of Information (Scotland) Act 2002, please provide the written confirmation referred to by Mr Palmer, in electronic form.

Response: I enclose a copy of most of the information you have requested (attached separately to covering email).
A small amount of information has been redacted from the information released under regulation 11(2) of the EIR’s because that information is the personal data of a third party (names and contact details) 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.

2 Please also advise and assist me with identifying and providing (in electronic form) any other correspondence between Marine Scotland and the US authorities (including but not limited to NOAA and the NMFS), about the effect of the US Marine Mammal Protection Act on seal shooting by or on behalf of marine fish farms in the UK.

Response: I enclose a copy of most of the information you have requested (attached separately to covering email).

A small amount of information has been redacted from the information released under regulation 10(5)(a) (substantial prejudice to international relations) (the reasons why these exceptions apply are explained in the Annex to this letter) and regulation 11(2) of the EIR’s because that information is the personal data of a third party (names and contact details) 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.

3 According to the American authorities the US National Marine Fisheries Service (NMFS) must ‘notify each harvesting nation that has such fisheries and request that within 90 days of notification the harvesting nation submit reliable information about the commercial fishing operations identified, including the number of participants, number of vessels, gear type, target species, area of operation, fishing season, and any information regarding the frequency of marine mammal incidental mortality and serious injury, including programs to assess marine mammal populations and laws, decrees, regulations, or measures to reduce incidental mortality and serious injury of marine mammals in those fisheries or prohibit the intentional killing or injury of marine mammals. NMFS would evaluate each harvesting nation’s submission.’ https://www.federalregister.gov/documents/2015/08/11/2015-19231/fish-and-fish-product-import-provisions-of-the-marine-mammal-protection-act

Please provide (in electronic form) the submission sent by the Scottish or UK authorities to the US authorities, as regards marine finfish aquaculture in Scotland, concerning ‘the number of participants, number of vessels, gear type, target species, area of operation, fishing season, and any information regarding the frequency of marine mammal incidental mortality and serious injury, including programs to assess marine mammal populations and laws, decrees, regulations, or measures to reduce incidental mortality and serious injury of marine mammals in those fisheries or prohibit the intentional killing or injury of marine mammals’.

Response: While our aim is to provide information whenever possible, in this instance the Scottish Government does not have the information you have requested.
Therefore we are refusing your request under the exception at regulation 10(4)(a) (information not held) of the EIRs. The Scottish Government does not have the information you have requested because it was uploaded onto an online database held by the US authorities.

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 marine finfish aquaculture in Scotland, clearly we cannot provide information which we do not hold.

4 Please also advise and assist me with identifying and providing (in electronic form) all relevant documents, including any correspondence between Marine Scotland and the US authorities (including but not limited to NOAA and the NMFS), about the effect of the US Marine Mammal Protection Act on the use of Acoustic Deterrent Devices by marine finfish farms in the UK., including the SalmonSafe Targeted Acoustic Startle Technology device manufactured by GenusWave.

Response: I enclose a copy of some of the information you have requested (attached separately to covering email).
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 regulation 10(4)(d) (material in the course of completion), regulation 10(4)(e) (internal communication), regulation 10(5)(a) (substantial prejudice to international relations) and regulation 11(2) (personal information) of the EIRs applies to that information. The reasons why these exceptions apply are explained in the Annex to this letter

5 Please also advise and assist me with identifying and providing (in electronic form) any other correspondence between Marine Scotland, SNH, Scottish Ministers, fish farming companies, the Scottish Salmon Producers’ Organisation, St Andrews University, or the developers of the SalmonSafe Acoustic deterrent/Targeted Acoustic Startle Technology device, manufactured by GenusWave, on the potential of these devices to disturb cetaceans.

Response: I enclose a copy of some of the information you have requested (attached separately to covering email).
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 regulation 10(4)(e) (internal communication) and regulation 11(2) (personal information) of the EIRs applies to that information. The reasons why these exceptions apply are explained in the Annex to this letter.

In addition, some information has been redacted because it does not fall within the scope of your request.

Annex
An exception applies

Regulation 10(4)(d) – material in course of completion, unfinished documents or incomplete data
An exception under regulation 10(4)(d) of the EIRs (unfinished or incomplete information) applies to some the information you have requested because it is material which is still in the course of completion. This relates to a draft report “Developing effective non-lethal seal control methods to limit seal predation on salmonids in rivers and at fish farms” which is still in course of completion and due to be completed/ published in the coming months.
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 in 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 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 officials about developing policy on non-lethal predator deterrents, including discussion about a specific device.
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 developing policy on non-lethal predator deterrents, including discussion about a specific device will be disclosed in the near future, when it may undermine or constrain the Government’s view on that case while it is still under discussion and development. This 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)(a) – substantial prejudice to international relations
An exception under regulation 10(5)(a) of the EIRs (prejudice to international relations, defence, national security or public safety) applies to some of the information you have requested. This exception applies because disclosure of this information would, or would be likely to, prejudice substantially relations between the United Kingdom and the United States Department of Commerce. The effective conduct of international relations depends upon maintaining trust and confidence between the UK Government and other States. In this case, the information about policy development on non-lethal predator deterrents was given on the understanding that it would be treated as being in confidence. If the Scottish Government does not respect this confidence, the UK Government’s relations with other States and its ability to protect and promote UK interests will be substantially prejudiced. States, such as United States Department of Commerce, are likely to be more reluctant to share sensitive information relating to policy development on non-lethal predator deterrents, with Scotland or other parts of the United Kingdom in future, which would reduce both the frequency and openness of communications with the UK.

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 disclosing information as part of open, transparent and accountable government, and to inform public debate. However, there is a greater public interest in ensuring that the UK Government is able to maintain good relations with other States, in order to protect and promote UK interests abroad. There can be no public interest in jeopardising those relations by the Scottish Government disclosing confidential information or information which another State has specifically asked us to withhold.

Regulation 11(2) –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

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.