Scottish National Marine Plan (NMP2) information: EIR release
Information request and response under the Environmental Information (Scotland) Regulations 2004.
Information requested
1. What consultations have been held with the tidal stream marine renewable energy industry to establish appropriate development goals (locations and scales of development) for the tidal stream marine renewable energy industry for the period covered by the current revision of the Scottish National Marine Plan (NMP2)?
Please provide copies of all information held relating to consultations with the tidal stream energy industry on matters related to NMP2 or any other marine planning process.
2. Please provide details of plans for future consultations with the tidal stream energy industry to inform the NMP2 revision.
3. Please provide copies of all other sources of information or advice have been, or will be, used to identify preferred locations and scales for tidal stream energy development.
4. What is the target date for the publication (formal adoption) of the revised Scottish National Marine Plan?
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. What consultations have been held with the tidal stream marine renewable energy industry to establish appropriate development goals (locations and scales of development) for the tidal stream marine renewable energy industry for the period covered by the current revision of the Scottish National Marine Plan (NMP2)?
Please provide copies of all information held relating to consultations with the tidal stream energy industry on matters related to NMP2 or any other marine planning process.
The National Marine Plan 2 (NMP2) has had two consultations that have been held with stakeholders, including the tidal wave energy industry.
Consultation 1: The Strategic Environmental Assessment (SEA) went out to consultation on 25 September 2023 to 30 October 2023 and has been published alongside its analysis report. See full details under consultation 1 section below.
Consultation 2: The Planning Position Statement (PPS) went out to consultation on 5 November 2024 to 7 February 2025. The responses have been published but the consultation analysis report is still in draft. See full details under consultation 2 section below.
Consultation 1 SEA Scoping report
The consultation is now complete and the results and analysis have been published. We received a total of 42 responses and 38 of these were published alongside the subsequent analysis.
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.
Most of the information you have requested is available from: Published responses for National Marine Plan 2 Strategic Environmental Assessment (SEA) Scoping Report - Scottish Government consultations - Citizen Space
As part of the published consultation above there were four consultation responses not published due to the consultees’ expressed wishes.
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 11(2) (applicant has asked for personal data of a third party), regulation 10(5)(e) (internal communications) and regulation 10(5)(f) (substantial prejudice to interests of person who provided the information) of the EIRs applies to that information. The reasons why these exceptions apply are explained in the Annex to this letter.
Consultation 2 - Planning Position Statement (PPS) for NMP2
The consultation is now complete, but the analysis is still in progress and so the consultation analysis report has yet to be published. We received a total of 102 responses.
87 of the 102 responses received have now been published since your information request was received, as part of the formal consultation process. To avoid duplication of our work, we are providing you with the link to where these have been published, rather than providing you with separate copies under this EIR. If, however, you do not have internet access to obtain this information from the website listed, then please contact me again and I will send you a paper copy.
This means that some of the information you have requested is now available from: Published responses for National Marine Plan 2 Planning Position Statement - Scottish Government consultations - Citizen Space
As part of the published consultation above there were a further 15 consultation responses not published due to consultee wishes.
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 11(2) (applicant has asked for personal data of a third party), regulation 10(5)(e) (internal communications) and regulation 10(5)(f) (substantial prejudice to interests of person who provided the information) of the EIRs applies to that information. The reasons why these exceptions apply are explained in the Annex to this letter.
An exception under regulation 10(4)(d) of the EIRs (unfinished or incomplete information) applies to some of the information you have requested because it is material which is still in the course of completion.
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 this will be met by our planned publication on 31 July 2025. However, this is outweighed by the public interest in ensuring that unfinished or incomplete information which is still in being worked on 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.
2. Please provide details of plans for future consultations with the tidal stream energy industry to inform the NMP2 revision.
3. Please provide copies of all other sources of information or advice have been, or will be, used to identify preferred locations and scales for tidal stream energy development.
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) of the EIRs. The reasons why that exception applies are explained below. 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 that information is not held.
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 tidal stream energy development policy clearly we cannot provide information which we do not hold.
4. What is the target date for the publication (formal adoption) of the revised Scottish National Marine Plan?
All of the information you have requested is available from: National Marine Plan 2: stakeholder engagement strategy and statement of public participation - gov.scot
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.
ANNEX
Exceptions applied
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.
Regulation 10(5)(f) – substantial prejudice to interests of person who provided the information
We have applied this exception to 20 responses in total (4 from the first consultation, and 16 from the second consultation aforementioned).
This exception applies because disclosure of this particular information would, or would be likely to, prejudice substantially the interests of respondents 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 any voluntary consultees, who provides 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 tidal stream energy development. 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.
Further to this, for us to release these consultation responses, against the expressed wishes of the individual, would be contrary to the effective conduct of public affairs. In that, that person or persons would be less likely to participate in this process again and so they would not provide their views, which in turn would not be added to all other views and in turn the government’s subsequent policy would be a little less well informed, which would not be in ours, or the public’s interest.
Regulation 10(4)(e) – internal communications [in relation to internal legal advice]
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.
About FOI
The Scottish Government is committed to publishing all information released in response to Freedom of Information requests. View all FOI responses at https://www.gov.scot/foi-responses.
Contact
Please quote the FOI reference
Central Correspondence Unit
Email: contactus@gov.scot
Phone: 0300 244 4000
The Scottish Government
St Andrew's House
Regent Road
Edinburgh
EH1 3DG