Licence for Portree barge salvage: EIR release

Information requested

Does Bakkafrost Scotland (formerly The Scottish Salmon Company) have a license to salvage the sunken Gael Force barge off Portree?

Are Bakkafrost operating legally or illegally?

Could you please also include a copy of the 'Notice to Mariners' which no doubt has been issued to navigation warning shipping to stay away from the salvage area?

How far is the current exclusion zone around the Bakkafrost salmon farm?

Have warning signs been erected at the coastal path and along the coast near the salmon farm warning people?

Presumably, if Bakkafrost is operating without a licence (illegally) then the relevant government agencies have powers to shut down the operation and issue fines?”

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.

The answer to your question is that Bakkafrost operated legally. Removal activities to recover an accidental loss from the seabed are exempt from the need for a marine license under Article 18A of The Marine Licensing (Exempted Activities) (Scottish Inshore Region) Order 2011 (legislation.gov.uk) (as amended):

“Accidental deposits – removal activity

18A.— (1) This article applies to a removal activity carried on for the purpose of removing any object from the seabed which has been accidentally deposited there.

(2) This article is subject to conditions 1 and 2.

(3) Condition 1 is that notice of the activity must be given, in writing, to the Scottish Ministers no later than 3 months from the date of commencement of the removal activity.

(4) Condition 2 is that the object to be removed from the seabed has been deposited there for less than one year before the removal activity is commenced.”

Please note that Condition 2 is dependent on the removal activity commencing within one year of the accidental deposit. As you are aware from information already released to you as part of our response to EIR Review 202200321470, activities to recover the vessel commenced well in advance of the statutory one year deadline and Scottish Government Officials have been notified of the relevant activities throughout. To further substantiate the Conditions being satisfied and in light of this more recent request, we are also releasing more recent communications in-scope of your request.

I enclose a copy of some of the information you requested. A Temporary Exclusion Zone (TEZ) was authorised by the Secretary of State’s Representative for Maritime Salvage and Intervention (SOSREP) for the lifting of the fish feed barge. The details of this TEZ are contained in the email trails being released as part of our response to this EIR. Please be advised that the TEZ has been varied as required to accommodate subsequent movements.

Please be advised that in instances where multiple copies of the same communication form part of the documentation being released in response to this EIR, we have redacted the duplicates for your ease of perusal. Also, that where there appear to be images attached to some of the emails, these are branding images belonging to Bakkafrost and MCA.

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)(a) – information not held and regulation 11(2) - personal information of a third party, of the EIRs apply to that information. The reasons why these exceptions apply are explained in the Annex to this letter.

Scottish Government does not hold copies of the Notification(s) to Mariners. As this is the responsibility of Bakkafrost, you may wish to contact them directly to request this. Similarly, Scottish Government does not hold information regarding possible signage in or near Portree. However, you may wish to contact Highland Council’s Emergency Planning Team at:

Emergency Planning The Highland Council,
Emergency Operation Centre,
Mackintosh Road,
Culcabock
IV2 3TX,
Tel: 01463 7134792,

who may be able to help you.

ANNEX
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. The Scottish Government does not have the information you have requested because the Scottish Government is not responsible for Notices to Mariners or local signage. You may wish to contact the relevant bodies to request this information.

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 Notices to Mariners and local signage, clearly we cannot provide information which we do not hold.

Personal Data of a Third Party

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 EIRs (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.

FOI 202200332849 - Information released

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