Advice provided relating to Flapper Skate protection: EIR release

Information requested

Copy of the advice that was sent to the minister as well as copies of any advice Marine Scotland received that influenced your position, especially minutes from the key stakeholder meetings”, in reference to recent work to provide interim protection to a flapper skate nursery area in the Inner Sound.

Response

Attached is a copy of some of the information requested. 

1. NatureScot advice – 27 January – Mapping addendum
2. NatureScot advice – 2 February – National context of Inner Sound

Some of the information you have requested is available from the Scottish Government website:

• Minutes from stakeholder meetings: https://www.gov.scot/publications/red-rocks-and-longayurgent-mpa-minutes-of-stakeholder-meetings/
• NatureScot advice of 26 October 2020 and 18 December 2020: https://www.gov.scot/publications/protection-flapper-skate-naturescot-advice-scottish-government-regarding-flapper-skate-eggs-inner-sound/

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.

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.

While our aim is to provide information whenever possible, in this instance we are unable to provide some of the information that you requested because exceptions under regulations 10(4)(e) and 10(5)(c) of the EIRs applies to that information. The reasons why that exception applies are explained below. Regulation 10(4)(e) applies because all of the information in question is internal communication involving free and frank advice provided by officials to Scottish Ministers in relation to the development of Government policy.

Exceptions which apply to this request

10(4)(e) – Internal Communications
An exception under regulation 10(4)(e) of the EIRs applies to some the information you have requested. Regulation 10(4)(e) applies to the disclosure of internal communications. This exception applies to the advice to Ministers which you requested.

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 because it forms part of open and transparent decision making and would inform public debate. However, this is outweighed by the public interest in officials being able to provide free and frank policy advice which ensure high quality policy and decision-making. This avoids officials being put off providing similarly frank advice on other topics in the future. Ministers and officials need to be able to consider all available options to fully understand their possible implications. Their candour in doing so will be affected by their assessment of whether these discussions about flapper skate protection in the Inner Sound will be disclosed in any future policy decisions on the matter, so release of this information would be likely to undermine the quality and level of detail of advice on the subject which is provided in future.

10(5)(c) – Intellectual Property
An exception under regulation 10(5)(c) of the EIRs applies to some the information you have requested. Regulation 10(5)(c) applies to the release of information for which third parties hold the intellectual property (IP) rights. In most cases, this applies to copyright, database rights or copyright in databases. As a general rule IP rights below to the author or the creator of the asset. The IP for some data contained within advice from NatureScot (“National context of Inner Sound”) is held by a third party.

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 because the location of skate egg records outside the Inner Sound is important context for the national importance of the Inner Sound site. However, this is outweighed by the public interest in maintaining IP rights. We believe the IP right holder could be subject to harm if this information was released, due to the sensitive nature of flapper skate egg locations.

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.

FOI202100174055 - Information released

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