Publication - FOI/EIR release

Impact of creeling removal within Clyde cod spawning closure: EIR review

Published: 17 January 2024
Directorate: Marine Directorate
Topic: Public sector
FOI reference: EIR/202200290995 Review of 202200272637
Date received: 14 January 2022
Date responded: 24 June 2022

Information request and response under the Environmental Information (Scotland) Regulations 2004.

Information requested

Can you please supply copies of the assessments you have made as to the relative likelihood of creeling, dredging and trawling on impacting the sites objectives?
Can you please supply copies of correspondence and copies of all minutes of meetings internal and external that would assist us in understanding the rational behind these decisions including records of meetings with fisheries representatives and copies of advice issued to ministers?
Over and above the preceding two requests can you please furnish ourselves with any further information we may have inadvertently omitted to request, that might inform ourselves as to how this announcement is either evidenced or ecosystems based or that might offer insight as to on what alternative basis this decision was made?
We note that the BRIA states that “there was a consultation within government. This consultation included collogues from MS science, Planning, Policy, Sea fisheries and compliance”. Can you please ensure that when you get around to progressing our previous request for information that you include all details, notes, communications etc relating to those consultations?
We note that the BRIA states "a significant majority of responses to the consultation called for some or all exemptions to be removed". As part of the detail furnishing our previous request can you ensure that there is a breakdown of the responses that indicates what percentages accrue to each option?
Lastly when you eventually get round to supplying the information that we have previously requested can you ensure any details that we may have omitted to specifically request that might shed light on either the decision to include creel and dive fishers and or that might explain why in the BRIA there was a ridiculous conclusion that "The SSI will not affect quota levels and should not prevent fishermen catching their full quota over the course of the year, although there may be some short term effect on cash flow during the closure". This conclusion implies that quota is currently a substantive factor in creel fishers ability to make a living and also implies that due to the measure not impacting quota that there were, beyond short term cash flow, no significant economic impacts anticipated for creel vessels?

Response

I have concluded that the original decision should be confirmed, with modifications.

Your original request and your request for a review

Your original request asked for information relating to six specific questions concerning the Clyde Cod closure. The questions asked and information being requested is detailed under the response section below. I have noted your dissatisfaction with the response to the request and the answers we have provided. In particular you expressed a view that the response fails to address the issues and the questions asked, and you requested that further consideration is given to supplying the specific details being requested. Within your review request you also posed a number of additional questions and statements as well as further requests for information. Please note that this review only considers the handling of EIR 202200272637 the response provided and the existence of relevant information at the time of the request. Any additional questions or requests for information will be / have been handled separately to this process, for example the response to EIR 202200291076 dealt with some of the queries you have posed.

I note that your request for a review was submitted directly to a member of staff within Marine Scotland. Please be aware that the procedure to initiate a review is to contact the Director of Marine Scotland (Directormarinescotland@gov.scot). This was specified within the original response letter issued to you, as is standard practice in all responses to requests for information handled under the legislation. Following this procedure helps to ensure no unnecessary delay in appointing a reviewer and allowing a response to be issued as soon as possible.

Response to your review request

I have met with colleagues involved in the handling of your original request and have discussed the response which was issued, the handling of the case including the sourcing of information and the application of exceptions.

I have concluded that the case has been handled appropriately under the correct legislation – The Environmental Information (Scotland) Regulations 2004 and that appropriate search activity was conducted.

I have considered the application of the exceptions in all cases and have made some modifications which now discloses some additional information. In addition, some information which was identified for release but was not included within the original response is now released through this review. In other situations exceptions to withhold and redact information were applied too widely, this review reassesses that with the application of exceptions in a restricted manner with a presumption in favour of the release of information. Despite the findings of this review, I also make the observation that the majority of the information considered and handled within the original response was done so appropriately in accordance with the regulations.

The additional information is provided as a separate attachment to this review response letter. I do apologise that this information was not provided to you initially.

You may also find information of relevance to your request which has been released and been made publicly available through responses to other requests for information on the subject area of the Clyde Cod closure. These include responses to EIR requests:

202200275727 - FOI The Sea Fish (Prohibition on Fishing) (Firth of Clyde) Order 2022

202200274371 - Socioeconomic evidence and the scientific fisheries studies consulted whilst preparing The Sea Fish (Prohibition on Fishing ) (Firth of Clyde) Order

202200274132 - VMS fishing data for the Clyde Cod Box

202200273744 - Clyde fishing ground closure 2

202200273687 - Clyde fishing ground closure

esponses to requests which release information are made publicly available on the Scottish Government website: https://www.gov.scot/publications/

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. If, however, you do not have internet access to obtain this information from the website(s) listed, then please contact me again and I will send you a paper copy.

In addition to the above, and given your overall dissatisfaction of the response to your original request for information (EIR 202200272637) as part of the review process I have addressed the specific parts of your request in turn and provided some additional information and clarity based upon the original response and this review process.

1, 2, 3

he response to your request provided copies of the scientific assessment of the impact of fishing activities including creeling(e.g. through – ITEM 4, ITEM 5, ITEM 10 - Attachments 1 and 2). This presents and explains the scientific evidence and opinion which supports the policy being adopted.

The request response also provided you with publicly available information resources which help to explain the reason and rational behind the decisions made, including a summary of relevant research, a blog relating to the Scottish Statutory Instrument and details of the Business and Regulatory Impact Assessment (BRIA) along with reference to a previous EIR response concerning data relating to the vessel monitoring system within the Clyde box:

https://www.gov.scot/publications/cod-spawning-areas-research/

https://blogs.gov.scot/marine-scotland/2022/02/01/targeted-and-focused-approach-tostrengthen- clyde-cod-recovery/

https://www.legislation.gov.uk/ssi/2022/35/pdfs/ssifia_20220035_en.pdf

https://www.gov.scot/publications/foi-202200274132/

Additionally, this review response provides some further information which helps to justify the decisions made and actions taken. In particular, this includes:

A number of ministerial briefing concerning several areas relating to the Clyde Cod Closure including, options for the Clyde cod closure measure for 2022/2023, the consultation exercise and consultation responses
Additional information on fishing activity relating to vessels under 10 meters, with respect to the Clyde cod closure area
A policy intention note concerning The Sea Fish (Prohibited Methods of Fishing) (Firth of Clyde) Order 2021
A Q&A document detailing potential answers to questions to be addressed if required (please note that the reference to diving was subsequently removed from this document)
A draft FMQ summarising the background situation and Scottish Government lines to take

Please be aware that as a live policy issue many of the documents referred to above and released as part of this review response are reflective of the situation at the time and may have been subject to further change and differing opinion as the situation evolved. This is of particular reference to the Q&A document, the draft FMQ document, the policy intention note and the ministerial briefings.

With the amendments made, I am satisfied that this part of the request has been answered in full and no additional information exists to that which has already been provided or published elsewhere.

No formal consultation took place within Scottish Government, however email communications concerning this subject area were considered as part of the response to the original request. Those communications were either considered to be exempt under regulation 10(4)(e) – internal communications or they were considered to be out with the scope of the request. This review has considered all of the documents identified and supports the original handling with some additional information released through the attachment to this letter, for example information concerning advice to ministers will reflect officials view points and opinions.

Responses to both parts of the consultation were published and links to the same were provided to you within the original response as follows:

https://www.gov.scot/publications/clyde-cod-spawning-closure-2022-23-consultation/pages/1/

The review response also releases some additional summary information relating to the analysis of the consultation responses included information provided to the Cabinet Secretary in the form of ministerial updates and submissions, providing some further detail on this subject area. No further information is held concerning this.

Some relevant information to this part of the request was provided to you in a response to a previous information request:

https://www.gov.scot/publications/foi-202200274132/ - Vessel Monitoring System (VMS) data for Clyde box: EIR release.

I am content that through the response issued to the original request, other requests as referenced above, and this review that this part of the request has been considered appropriately.

Exceptions apply to the additional information released

Within the additional information released through this review response you will note that some redaction of information has been applied. In addition, some information has been withheld in its entirety. This includes redactions made and withholding of information with respect to regulation 10(4)(e) – internal communications, where information relates to policy advice and professional legal privilege, as well as redactions applied with respect to regulation 10(5)(f) – substantial prejudice to interests of persons who provided the information. Further justification on the application of these exceptions is provided to you in Annex A of this response.

In addition to the above an exception under regulation 11(2) of the EIRs (personal information) applies to some of the email communications provided to you 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.

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