Port Mor Harbour: EIR release

Information requested

In relation to the Port Mor case, Isle of Colonsay, I would like to make the following Freedom of Information requests.

I would like to see all held by Marine Scotland regarding the specifics of the unlicensed activity below MHWS. I would like to see dated instances of this information being received/recorded, and then shared with MS-LOT; all relating to the 6 days of digger activity below MHWS at Port Mor harbour in July 2021 and resulting effects at the harbour.

I would like to see all relating to the process of drafting the remedial notice to the Robinsons that described MS-LOT’s understanding of what had occurred at Port Mor harbour and asked for a resolution. I would like to see all internal correspondence regarding this, from the task being described & allocated to a staff member, the communication of any/all relevant case information between & within departments and the consultation process between colleagues & departments to reach, agree on and approve the final draft ready for dispatch. I would like to see the remediation notice as sent.

I would like to see all recorded notes and photographs from the 3 site visits, showing tide levels. I’d like to see the recorded process of comparing, contrasting & assessing the site as viewed, with pre-vandalism photographs, the recorded witness statement and other information held - as requested above.

I would also like to see all internal communications discussing the suitability/adequacy of the minimal ‘remedial’ action taken by the Robinsons; moving 4 boulders (that they had taken from the harbour’s breakwater structure), to land above MHWS - rather than any attempt to restore the damaged breakwater.

I would like to see all relating to any dissatisfaction or concern being raised both internally from within Marine Scotland (from/across any department), and also any coming in from CrownEstate Scotland/Bidwells, regarding the handling, understanding of, outcome, consequences and fall-out of the Port Mor harbour vandalism case between 2021 and the current day.

For the above I would like to see all relevant emails, attachments, files, statements, descriptive content, photographs, meeting minutes, messages and discussion notes, all dated.

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.

I attach some of the information requested. 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; regulation 10(4)(e) - internal communications; regulation 10(5)(d) – confidentiality of proceedings; regulation 11(1) – personal information of which you are the data subject 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.

Due to the size of the files we are unable to upload the documents referred to above. If you wish to consider, please contact us at the address below and we will be happy to provide.

Please also 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. Additionally, where there appear to be images attached to some of the email trails, in the vast majority of instances these are branding images. In a handful of cases, the image is a map or extract from your Witness Statement. As these are also being released as part of our response, we have included a comment on the document referring you to the released version. Some of the information supplied to you continues to be protected by the Copyright, Designs and Patents Act 1988. You are free to use it for your own purposes, including any non-commercial research you are doing and for the purposes of news reporting. Any other re-use, for example commercial publication, would require the permission of the copyright holder. Most documents supplied by the Scottish Government will have been produced by government officials and will be Crown Copyright. You can find details on the arrangements for re-using Crown Copyright material on the National Archives website at: http://www.nationalarchives.gov.uk/doc/opengovernment-licence/version/3/

ANNEX
REASONS FOR NOT PROVIDING INFORMATION
Exceptions apply

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 some of the information you have requested because we have been unable to locate the original hard-copy of one of the enforcement officer’s notebooks.

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 the relevant extracts from the enforcement officer’s notebook, clearly we cannot provide information which we do not hold.

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.

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 the release of this information as part of open, transparent and accountable government, and to inform public debate. However, there is a greater public interest in high quality decision-making, and in the properly considered implementation and development of 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 will be disclosed, when it may undermine or constrain the Government’s view on that issue while it is still under discussion and development.

Confidentiality of Proceedings

An exception under regulation 10(5)(d) of the EIRs (confidentiality of proceedings) applies to some of the information you have requested because it pertains to statutory compliance procedures.

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 protecting the processes under which compliance investigations are conducted, thus ensuring that the Scottish Government is able to conduct this aspect of its business effectively.

Personal Data

An exception under regulation 11(1) of the EIRs (personal information) applies to some of the information requested because it is personal information of which you are the data subject, and so it is subject to the General Data Protection Regulation (GDPR) and 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.

However, in line with our duty to advise and assist under regulation 9, please be advised that you can make a subject access request for your personal data under Article 15 of the UK General Data Protection Regulation (UK GDPR) or, as appropriate, section 45 of the Data Protection Act 2018.

You can do this through our Request personal data: form - gov.scot (www.gov.scot). Alternatively you can contact the Data Protection and Information Assets Team whose contact details are:

Data Protection and Information Assets Team
ISIS Office of Security and Information Assurance (OSIA)
The Scottish Government
V Spur Saughton House
Broomhouse Drive
EDINBURGH
EH11 3XD
Telephone: 0131 244 8487

All of your personal information will be accessible to you unless it is covered by an exemption. 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.