Cases of illegal fishing within Scotland’s Marine Protected Areas: EIR review

Information requested

Your request, reference 202100248056
"Marine Scotland Compliance's submissions to the Procurator Fiscal relating to all cases of illegal fishing within Scotland’s Marine Protected Areas and areas subject to mandatory fishing areas (seasonal and/or permanent) which have been heard in court in 2020 and in 2021 to date, as well as any correspondence received from the Procurator Fiscal relating to the outcomes of these hearings and sentencing? Can you please include all information submitted, redacted to ensure compliance with the Data Protection Act, and including specifically the standard prosecution reports, any impact statements, VMS logs, relevant sales notes and landings declaration forms and officer statements".

Your review request, reference 202200271010
Many thanks for your staff's time in processing this information request. I would, however, like to appeal the decision not to provide all information. This is because I believe the public interest test has not been correctly applied when considering the exemptions.

In both exemptions you argue that a personal identities may be derived from the information and that this would be detrimental to future work. Clearly the Data Protection Act already protects against this and this can be navigated (indeed it already has been navigated in the information already provided) by simple redactions.

The response also exempts some information on the basis it is used in a criminal investigation and because "Its release could enable individuals to assess the information that we have and make judgements as to how it is gathered and its significance in an investigation". The iinformation excluded includes Standard Prosecution Reports, Officer Statements, Witness statements, VMS logs, Sales notes and Landing declarations. Firstly we argue that the approach used to gather this information is already public knowledge and therefore the impact of providing it on prospective criminals' judgement is likely very minimal. Secondly we argue that this information has already been made publicly available during the court hearings and therefore any enablement of individuals to assess information and its significance in an investigation may have already happened. Finally, the decision to exclude this information has not also considered the positive public interest in making the information available, this might include enhancing the public understanding of how information can be used in an investigation (which is ultimately our motivation for the request) as well as improving the public's understanding of government enforcement activity, it may also provide an effective deterrent of future illegality by showing successful enforcement activity.

We believe the decision to not provide this information contradicts the approach taken by other reporting agencies, where information about convictions is often proactively communicated - in those instances it is clear that the reporting agency believes there is a public interest in communicating the conviction. We wish to see greater deterrent and enforcement of fisheries management measures within protected areas and it is the spirit of this objective we have sought to access this information.

Response

I have now completed my review and have concluded that a different decision be substituted.

I found that the original case had incorrectly been handled under the Freedom of Information (Scotland) Act 2002 (FOISA), which led to the exemptions under sections 34 and 35 of FOISA being applied. The request is for environmental information as defined at section 2(1) of the Environmental Information (Scotland) Regulations 2004 (the EIRs) and should have been considered under these Regulations and not under FOISA. Therefore, I have reconsidered your request under the Environmental Information (Scotland) Regulations 2004, which correctly apply to this information.

Under the original request, the following information was withheld under sections 34 and 35 of FOISA:

• Standard Prosecution Reports
• Officer Statements
• Witness statements
• VMS logs
• Sales notes
• Landing declarations

My review of this case has concluded that the original FOISA exemptions cannot apply but that exceptions at regulation 10(5)(b) (substantial prejudice to the course of justice, the ability of a person to receive a fair trial or the ability of a public authority to conduct and inquiry of a criminal nature) and regulation 11(2) (personal data) of the EIRs apply to some this information. The reasons why these exceptions apply for specific documents are set out below.

There were three cases heard in court during the period specified, and these are identified chronologically as cases 1, 2 and 3.

As a result of my review, the Standard Prosecution reports and Officer statements for Cases 1 & 2, (redacted to remove personal data), and one Officer statement, (redacted to remove personal data), for Case 3 are included. 

Material withheld
Interview Transcripts Cases 1 & 2, Witness Statements Case 2, Standard Prosecution reports, Case 3 and withheld Officer Statements Case 3.

An exception at regulation 10(5)(b) (substantial prejudice to course of justice, fair trial, or criminal or disciplinary inquiry) applies to this information.

The interview transcripts for Cases 1 & 2 contain specific details of the surveillance techniques employed by Marine Scotland Compliance, as well as the interview techniques and technical evaluation of mitigation and defences proposed by the accused. Release of this information would lead to other attempts to evade prosecution for similar contraventions.

The witness statements in Case 2 will not be released. Disclosure could hinder the authority’s ability to find witnesses willing to participate in investigations, once they knew their contributions could be disclosed. This would adversely affect Marine Scotland’s ability to conduct criminal investigations. The Standard Prosecution Report in Case 3 gives specific details of the charge being reported to the Procurator Fiscal, and includes the transcript of the relevant interview of suspect, witness statements, and background information and comments to illustrate the nature and severity of the report. The information contained within these gives an indication of the methods by which identification of an offence occurs, the investigative strategy and the questioning techniques employed by officers. Much of this questioning is of a technical nature and it is possible from this to elicit the nature of observation techniques employed in cases where vessels are suspected of illegal and unauthorised fishing activity. These documents are not made public at trial and therefore would substantially prejudice the course of similar investigations if released.

I consider that release of these documents would reveal how Marine Scotland conducted investigations – awareness of its techniques would enable suspects to evade detection or conviction. In addition, the investigations were conducted relatively recently; although the cases are closed, the investigative and interview techniques are still current and the witness statements are recent. Release of the information would adversely affect future investigations.

This exception is subject to the ‘public interest test’. Therefore, taking account of all the circumstances of this case, I have considered if the public interest in disclosing the information outweighs the public interest in applying the exception. I have found that, on balance, the public interest lies in favour of upholding the exception. I recognise that there is a public interest in disclosing information as part of open, transparent and accountable government. However, this is outweighed by the strong public interest in the ability of the Scottish Government to continue to enforce measures designed to protect the marine environment.

Further, an exception under regulation 11(2) of the EIRs (personal information) applies to some 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.

VMS logs
An exception under regulation 11(2) of the EIRs (personal information) applies to this information 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.

Sales notes and Landing declarations
The sales and landing data for the cases contain information relating to the identity of the vessel, skipper and commercial values. An exception under regulation 11(2) of the EIRs (personal information) applies to some of this information 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.

​​​​​​​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.

FOI202200271010 - Information released

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