Didemnum vexillum correspondence and species control agreement information: EIR release

Information requested

Please provide all emails pertaining to "dvex AND oysters" OR "dvex AND Loch Creran" i.e. emails that do not contain both references to Dvex and oysters, or Dvex and Loch Creran, can be considered outside the scope of the request,

and

Please also include the minutes from meetings which set out species control agreements currently in place, that is, intra- and interdepartmental meetings, consultations with relevant experts and with businesses, including the email chain that led to the finalised SCA being put in place.

As this response will be published on the Scottish Government website, to provide context, we would like to clarify that an SCA is a Species Control Agreement. SCAs are voluntary agreements, made under section 14D(2) of the Wildlife and Countryside Act 1981 as amended by the Wildlife and Natural Environment (Scotland) Act 2011. The purpose of an SCA is to formalise the steps which need to be taken, by whom and by when, to deal with an invasive non-native species which in this case, is the Carpet Sea Squirt (Didemnum vexillum) which has been observed at Rubha Mor, Dalintober, Barcaldine, Argyll.

Response

I enclose a copy of some of the information you requested. Please find attached items 1 to 5. I can confirm that there are no current SCAs in place for which the Scottish Government has habitat responsibility, in the marine environment. We have therefore interpreted your request as relating to the last SCA which was in place in the marine environment, i.e. from 2023 to 2024.

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 regulations 10(4)(a) (information not held), 10 (4)(b) (manifestly unreasonable), 10(4)(e) (internal communications), 11(1) (applicant's personal data) and 11(2) (personal data of a third party) of the EIRs applies to that information. The reasons why these exceptions apply are explained in the Annex to this letter.

Additional information provided out with the EIRs

Under regulation 9 of the EIRs (our duty to provide advice and assistance) we would like to advise you that, while Marine Directorate have habitat responsibility for the marine environment, other SCAs which relate to terrestrial or freshwater environments may have been issued by NatureScot or SEPA. You may wish to contact NatureScot at: enquiries@naturescot, or SEPA at: Contact Sepa | Scottish Environment Protection Agency (SEPA) for further information.

ANNEX

REASONS FOR NOT PROVIDING INFORMATION

Exceptions applied

Regulation 10(4)(a)- 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 no SCAs have been issued by Marine Directorate, other than those which were issued to the Caledonian Oyster Company Limited (COCL).

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 other SCAs, clearly we cannot provide information which we do not hold.

Regulation 10(4)(b)- manifestly unreasonable

Under the exception at regulation 10(4)(b) of the EIRs a public authority may refuse a request for information if it is ‘manifestly unreasonable’. The Scottish Information Commissioner’s guidance on the regulation 10(4) (b) exception at: BriefingRegulation104bManifestlyUnreasonableRequests.pdf says that there may “be instances where it is appropriate for the Commissioner to consider the proportionality of the burden on the public authority in terms of the costs and resources involved in dealing with a request when considering the application of this exception”.

You have asked for “all emails pertaining to "dvex AND oysters" OR "dvex AND Loch Creran”, it not feasible for us to provide these. In searches relating to this request, 1000s of emails were in scope. Because of this, the costs and resources involved in complying with this request are disproportionate and a 20 working days extension to the response deadline (under regulation 7 of the EIRs) would still not make the request manageable. For these reasons, we consider that this part of your request is manifestly unreasonable and so we are rejecting it under regulation 10(4)(b).

As the exception is conditional we have applied the ‘public interest test’. This means we have, in all the circumstances of this case, considered if the public interest in disclosing 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 “all emails pertaining to "dvex AND oysters" OR "dvex AND Loch Creran”, this is outweighed by the public interest in ensuring the efficient and effective use of public resources by not incurring excessive costs when complying with information requests.

Regulation 10(4)(e) – internal communications (in relation to internal legal advice)

You have asked for "the minutes from meetings which set out species control agreements currently in place, that is, intra- and interdepartmental meetings, consultations with relevant experts and with businesses, including the email chain that led to the finalised SCA being put in place.” 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 11(1)- Applicant has asked for their own personal data

You have asked for “the minutes from meetings which set out species control agreements currently in place, that is, intra- and interdepartmental meetings, consultations with relevant experts and with businesses, including the email chain that led to the finalised SCA being put in place.” 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.

You can request a copy of any personal data we hold about you by making a subject access request (SAR) under the General Data Protection Regulation at: https://www.gov.scot/publications/subject-access-requestform/

Regulation 11(2)- Applicant has asked for personal data of a third party

You have asked for “the minutes from meetings which set out species control agreements currently in place, that is, intra- and interdepartmental meetings, consultations with relevant experts and with businesses, including the email chain that led to the finalised SCA being put in place.” 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 https://www.gov.scot/foi-responses.

EIR 202500480841 - Information released - Attachments 1 to 5

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