Procedural failures in public notice for Mey BESS application: EIR release

Information requested

Annex A confirms that the public notice for Mey BESS was published incorrectly in June 2024, requiring republication and an extended consultation deadline. This constitutes a material procedural irregularity. I request disclosure of all internal discussions, legal advice, or correspondence relating to this failure and its implications for the validity of the application process.

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.

While our aim is to provide information whenever possible, in this instance the Scottish Government does not have the information you have requested.

The Scottish Government does not hold any internal discussions, legal advice, or correspondence relating to this failure and its implications for the validity of the application process. Therefore, there is no information
available for release.

The public notice was initially published incorrectly and subsequently republished to ensure compliance with procedural requirements. This approach is consistent with the Energy Consent Unit guidance on publicity requirements which can be found Here. The corrected publication ensured that the statutory consultation process could proceed in line with legislative expectations. Scottish Ministers will not proceed to determine an application until all procedural requirements have been met, including proper public notification. The validity of the application is therefore contingent on the corrected publication being completed and the consultation period being observed in full. This approach aligns with the principles set out in the Energy Consents Unit: Good Practice Guidance for Applications under Section 36 and 37, which emphasises the importance of transparency, procedural integrity, and meaningful engagement with stakeholders throughout the application process.

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. 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 this information, but 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.