Correspondence between Marine Scotland and Inch Cape Offshore Limited: EIR release

Information requested

Please provide the following information:

1. Correspondence with ICOL

All correspondence between Marine Scotland (including the Licensing Operations Team and Offshore Wind Directorate) and Inch Cape Offshore Limited (ICOL) between 1 March 2025 and the present, relating to:

• The preparation, submission, assessment, or review of ICOL’s IC(FMMS);
• Stakeholder engagement, consultation processes, or references to Redacted 11.1 and/or his business;
• Any reference to objections, consultation submissions, evidence, or offers of mediation made by or concerning Redacted 11.1. Please include emails, meeting notes, letters, briefings, phone call records, internal messaging, and any draft responses or working documents.

2. Internal Marine Scotland Communications

All internal Marine Scotland communications (emails, meeting notes, memos, working files, or other relevant records) relating to: 

• How stakeholder objections to ICOL’s FMMS have been reviewed or handled; 
• Considerations or discussion of the impacts on processing or added-value seafood operations; 
• Concerns raised regarding ICOL’s engagement conduct, evidence demands, or legal positioning;
• Deliberations about whether to approve, delay, revise, or reject ICOL’s FMMS.

3. FMMS Assessment Criteria

Any documents, guidance, or assessment criteria (internal or external) used by Marine Scotland to evaluate the adequacy of ICOL’s FMMS, including:

• Compliance with FLOW 2014 and 2015 guidance;
• Evidence thresholds or engagement benchmarks;
• Briefings to senior officials or Ministers.

Please include any draft or non-final materials used in the review process.

4. Information Withholding

If any documents are withheld under exemption, I request:

• An index or summary of those documents, including their titles, authors, dates, and the exemption(s) applied;
• The release of all non-exempt portions with appropriate redactions.

5. Urgency and Public Interest

As the FMMS in question is currently under active review, I request that this FOI be treated as urgent. The matter has serious implications for stakeholder rights, regulatory transparency, and alignment with publicly funded economic activity. There is a clear public interest in ensuring that decisions taken by Marine Scotland reflect accurate information, appropriate process, and good governance.

6. Duties to Safeguard Fishing Stakeholders

Please provide any internal guidance, correspondence, or meeting notes outlining Marine Scotland’s responsibilities or procedures to protect the rights of affected fishers under the FMMS framework, including any mention of:

• Duty of care to materially impacted fishing businesses;
• Equitable treatment of stakeholders under FLOWW or FMMS;
• Just transition, socio-economic mitigation, or sustainable fisheries protection;
• Any risk assessments or concerns flagged about FMMS approval harming coastal or fisheries interests.

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.

Response to question 1 and question 2

I enclose 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 under Regulation 11(2) - personal information of a third party, Regulation 11 (1) - Personal Information of the applicant, Regulation 10(4)(e) (internal communications) and Regulation 10(5)(e) confidentiality of commercial or industrial information, of the EIRs applies to that information. The reasons why these exceptions are applied is explained in the Annex to this letter.

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/open-government-licence/version/3/

Information you receive which is not subject to Crown Copyright continues to be protected by the copyright of the person, or organization, from which the information originated. You must ensure that you gain their permission before reproducing any third party (non-Crown Copyright information).

I would also like to advise you that points 2 and 3 are being treated as a Subject Access Request and the Scottish Government’s Data Protection and Information Assets Team will respond on these points.

Response to question 3

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(4)(a) Information not held of the EIRs applies to that information. The reason why this exception applies is explained in the Annex to this letter.

Response to question 4

No documentation has been withheld in its entirety. All redactions that have been applied are reflected in the material that has been released.

Response to question 5

The Scottish Government has a statutory 20 day deadline to respond to FOI/EIRS.

Response to question 6

While our aim is to provide information whenever possible, in this instance we are unable to provide the information you have requested because under regulation 10(4)(a) of the EIRs (information not held), the Scottish Government is not required to provide information which it does not have.

ANNEX

Personal information 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.

Personal information of the applicant

Regulation 11 (1) - To the extent that environmental information requested includes personal data of which the applicant is the data subject then the duty under regulation 5(1) to make it available shall not apply to those personal data. 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(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 relates to internal communication between Scottish Government 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 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 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 ICOL`s Fisheries Management and Mitigation Strategy (FMMS) will be disclosed in the near future, when it may undermine or constrain the Government’s view on the issue while it is still under discussion and development. 

Confidentiality of commercial or industrial information

Under the terms of the exception at regulation 10(5) (e) of the EIRs (the confidentiality of commercial or industrial information where such confidentiality is provided for by law to protect a legitimate economic interest). An exception under regulation 10(5) (e) (confidentiality of commercial or industrial information) of the EIRs applies to the information you have requested with regard to ICOL’s Fisheries Management and Mitigation Strategy (FMMS). This exception applies because disclosure of this particular information would, or would likely to, prejudice substantially the confidentiality of commercial information provided by ICOL and thus cause substantial harm to their commercial interests.

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 and accountable government, and to inform public debate. However, there is a greater public interest in protecting the commercial interests of companies when substantial harm can be made to their commercial interests.

Information not held

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 does not hold any ministerial correspondence, Assessment Criteria or information relating to Duties to Safeguard Fishing Stakeholders.

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 information on ministerial correspondence, Assessment Criteria or information relating to Duties to Safeguard Fishing Stakeholders, clearly we cannot provide information which we do not hold.

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.