Razor Clam Trial: EIR release

Information requested

• During and since the start of the Razor Clam Trial from 1st July 2023 to 23th August 2023 how many Vessels has breached the Health and Safety Diving Regulations of terms and Conditions of the Trial?
• What Action was taken against vessels found to be in breach of these Terms
• If any Beaches of Diving Regulation where identified, was there any investigation and if so what was the outcome of the investigation?

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.

Response to your request

The answer to your question as follows:

As explained in previous EIRs you have submitted (202300340722 and 202300353123), the Scottish Government reserves the right to take action when it is for the management of the trial and if the trials rules and objectives are found to be undermined. This is stated in the trials terms and condition “8.1 Marine Scotland will take action where necessary against vessels which breach the conditions of the trial or any other general fishery regulations. Action may range from advisory or administrative sanctions, including permanent expulsion from the trial, to formal enforcement action”. In determining the extent of such action, the Scottish Government regard the gravity of the breach, the consequences or possible consequences of the breach and the extent to which previous action was taken on the same offence.

While our aim is provide information whenever possible, under regulation 11(6) of the EIRs, a public authority may respond to a request by not revealing whether information exists or is held by it, if to do so would involve making information available in contravention of regulation 11. Regulation 11(2) provides that where the information includes personal data about the person other than the applicant and disclosure would contravene the data protection principles in Schedule 1 to the Data Protection Act 1998, the public authority shall not make that personal data available.

In this instance, we consider that to reveal whether the information you have requested exits or is held by the Scottish Government would involve making personal information available regarding any breaches by vessels within the razor clam trial by authorised participants is in contravention of regulation 11. This exception is not subject to the ‘public interest test’, so we are not required to consider if the public interest in disclosing this 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.