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Publication - FOI / EIR Release

Ship-to-ship oil transfers in Port of Cromarty Firth: EIR release

Published: 26 Mar 2018

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

FOI reference: FOI/18/00631
Date received: 20 February 2018
Date responded: 16 March 2018

Information requested

Copies of all correspondence involving Scottish Government ministers and or officials related to the Port of Cromarty Firth applications to carry out ship-to-ship oil transfers in the Cromarty Firth [in past 3 years].

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.

I enclose a copy of most of the information you requested. This information enclosed is for materials between 22nd December 2016 and the 20th February 2018. The preceding materials between 1st December 2015 to 22nd December 2016 have been available and published on the Scottish Government website since March 2017 here: http://www.gov.scot/Topics/marine/marine-environment/Conservationstrategy/STS/STSFOI.

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)(e) (internal communications), 10(5)(d) (Confidentiality of proceedings provided for by law), and 11(2) (Personal information relating to a third party), of the EIRs apply to that information. The reasons why these exceptions apply are explained below.

Reasons for not providing information

An exception applies.

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 Scottish Government does not hold information on this request prior to December 2015.

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 correspondence involving Scottish Government ministers and or officials related to the Port of Cromarty Firth applications to carry out ship-to-ship oil transfers in the Cromarty Firth, clearly we cannot provide information which we do not hold.

An exception under regulation 10(4)(e) (internal communications) of the EIRs applies to some of the information you have requested. The communications that have been excepted relate to internal discussions on policy development, advice to Ministers and drafting of media lines.

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 Ministers and 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 Ship to Ship Transfers in the Cromarty Firth will be disclosed in the near future, when it may undermine or constrain the Government's view on that policy while it is still under discussion and development. In addition this is a live subject, and disclosure would affect our ability to respond to a future consultation on the reserved matter. There is also a greater public interest in allowing a private space within which officials can provide free and frank advice and views to Ministers in briefing for SPQ answer(s), press lines and lines to take. It is clearly in the public interest that Ministers can properly answer Parliamentary questions, provide sound information to Parliament (to which they are accountable), and robustly defend the Government's policies and decisions. They need full and candid advice from officials to enable them to do so. Premature disclosure of this type of information could lead to a reduction in the comprehensiveness and frankness of such advice and views in the future, which would not be in the public interest.

An exception under regulation 10(5)(b) of the EIRs (substantial prejudice to course of justice) also applies to some of the information you have requested because it is 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.

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 Schedule 1 to the Data Protection Act 1998. 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 http://www.gov.scot/foi-responses

FoI-18-00631 - POCF materials for release.pdf

27 page PDF
874.0kB

FoI-18-00631 related documents.pdf

14 page PDF
506.6kB

Contact

Please quote the FOI reference

Central Enquiry Unit
Email: ceu@gov.scot
Phone: 0300 244 4000

The Scottish Government
St Andrew's House
Regent Road
Edinburgh
EH1 3DG

Published:
26 Mar 2018
Ship-to-ship oil transfers in Port of Cromarty Firth: EIR release