Obstructions on the foreshore at Port Mohr: EIR release

Information requested

With regard to the obstructions on the foreshore at Port Mohr, Isle of Colonsay. [The Access Officer of Argyll and Bute Council’s letter to Servitude Rights Holders] makes the statement: ‘Marine Scotland has stated that all obstructions on the foreshore below the MHWS have been removed following the serving of a notice’.

My freedom of information request is to see your report which details the evidence you have used in order to make the above claim.

The photos on page 7 of the access officer's report clearly show a [l]ine of boulders below MHWS. This obstruction is still there. My further freedom of information request is to see what evidence do you have to assert that the boulders are above MHWS.

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 attach a copy of most of the information you requested.

The statement attributed to Marine Scotland (MS) and cited in the request, is derived from a letter issued by Argyll and Bute Council to Servitude Rights Holders. MS has not been able to identify any evidence that we made this statement verbatim. We have stated that we consider the specific steps detailed in the Section 44 Remediation Notice issued by MS on 22 February 2022 have been completed to our satisfaction. As part of our response, we will release a copy of the relevant email correspondence between MS and Argyll and Bute Council for your perusal.

While our aim is to provide information whenever possible, in this instance the Scottish Government does not have some of the information you have requested. The Scottish Government does not hold a report, per se, which outlines all the evidence used in decision making. Therefore we are refusing this part of your request under the exception at regulation 10(4)(a) of the EIRs. The reason why this exception applies is explained in the Annex to this letter.

Nonetheless, as part of our response we will release copies of the Section 44 Remediation Notice, the internal feedback from our post-remdiation site-visits and the associated photographic evidence. We believe these documents contain most of the information you have requested and satisfy our obligation under regulation 9 of the EIRs to advise and assist you.

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 an exception under regulation 11(2) of the EIRs applies to that information. The reason why that exception applies is explained in the Annex to this letter.

Due to the size of the files we are unable to upload the documents referred to above. If you wish to consider, please contact us at the address below and we will be happy to provide.

Please be advised that where there appear to be images attached to some of the emails, these are branding images.

ANNEX
REASONS FOR NOT PROVIDING INFORMATION

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 hold a report, per se, which outlines all the evidence used in our decision making.

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 the evidence used to inform our decision making, clearly we cannot provide information which we do not hold.

An exception applies

Regulation 11(2) – To the extent that environmental information requested includes personal data of which the applicant is not the data subject and in relation to which either the first or second condition set out in paragraphs (3) and (4) is satisfied, a Scottish public authority shall not make the personal data available.

An exception under regulation 11(2) of the EIRs (personal information of a third party) 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.

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.