Management of razor clams in Scottish waters: EIR release

FOI reference: FOI/18/02156  
Date received: 9 August 2018 
Date responded: 6 September 2018

Information about the management of razor clams in Scottish waters from May 2016 to present day and also any information held about the future or hypothetical use of electrofishing for other target species (not razors) under the existing derogation or any other legal route.

As the information 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 this 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 the request.

I enclose a copy of most of the information you requested as an electronic PDF. 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)(e) (internal communications), 10(5)(f) substantial prejudice to interests of person who provided
the information, 11(2) documentation contains personal data of a third party of the EIRs
applies to that information. The reasons why that exceptions apply are explained below.
Also, in this instance the Scottish Government does not have some of the information you
have requested. Therefore we are refusing your request under the exception at regulation
10(4)(a) of the EIRs. The reasons why that exception applies are explained below.
Further specific information on the management of razor clams can be obtained on the
Scottish Government website https://www.gov.scot/Topics/marine/Sea-
Fisheries/management/razors.

The website provides information surrounding the decision to
authorise the trial, including the scientific evidence, a link to the related public consultation
and Government’s response to the consultation and information on the legislation supporting
the trial. 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. 

Regulation 10(4)(e) - Internal communication.
This applies to some of the information you have requested because it relates to internal exchanges and release could compromise our collective ability to reach an agreed policy position.
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. However, this is outweighed by the strong public interest in maintaining the right to confidentiality of communications between officials whilst we are still developing an agreed policy position. 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 the management of razor clams in Scotland 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.
Regulation 10(5)(f) – substantial prejudice to interests of person who provided the information
An exception under regulation 10(5)(f) of the EIRs (substantial prejudice to interests of person who provided the information) applies to some the information you have requested. This exception applies because disclosure of this particular information would, or would be likely to, prejudice substantially the interests of consultation respondees who provided that information to the Scottish Government and may have requested that their response was not disclosed. Individual response to the consultation are available online, subject to permission, https://consult.gov.scot/marine-scotland/electrofishing-for-razor-clams/

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 government. However, there is a greater public interest in protecting the interests of anyone, such as consultation respondees who request that information provided to the Scottish Government is on a confidential basis. Disclosing such information against the express wishes of the stakeholder is likely to undermine their trust in the Government and make them reluctant in future to share information with us on issues during consultations. This would significantly impair the Scottish Government’s ability to develop policies and make decisions on the basis of fully informed advice and evidence. This would not be in the public interest.

Regulation 11(2) – applicant has asked for personal data of a third party.
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.
The Scottish Government does not have the information.
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 there has been no wider Marine Scotland policy consideration or proposals on the use of any electrofishing technique for the commercial prosecution of other target species in the marine environment.
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 commercial electrofishing outwith the razor clams trial, clearly we cannot provide information which we do not hold.
However, for information, you might find it helpful to know that there is a derogation from the EU prohibition on fishing with electricity (Article 31a of EC no. 850/98) which permits beam trawling for flat fish in an area of the southern North Sea.

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