Expenses claim made by Wildcat Haven CIC: EIR release

Information requested

I am making a FOI request about an expenses claim made by Wildcat Haven CIC that was due to a planning inquiry WIN-110-2 (Section 36 Wind Farm).

A letter from the Scottish Government's Energy and Climate Change Directorate dated 14th July 2023 and addressed to SLR Consulting Ltd (ref: ECU00002002) states that the claim for expenses by Wildcat Haven CIC against Vattenfall Wind Power Ltd was rejected by Scottish Ministers. 

The actual document containing the expenses claim by Wildcat Haven does not appear to be on the DPEA website (out of 1139 documents).

As the process for the expenses claim is now finished, please could the DPEA provide the document(s) relating to expenses claims (and a breakdown of these expenses claims). Although Wildcat Haven CIC give several reasons for the claim (summarised in the 14 July letter) the amount of the claims are not given nor how these costs were incurred.

Please could the DPEA also provide the invoices or receipts (if any were provided) for all individuals and companies that comprised expenses. Also Wildcat Haven pay consultancy fees to other companies such as Paul O'Donoghue Consulting, Specialist Wildlife Services or Conservation Consulting (all companies registered with Companies House).

Please could the DPEA provide any evidence (if available) that the individuals and companies (for which expenses were incurred) were actually paid or not.

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.

Some of the information you have requested is available from the DPEA website at the attached link - https://www.dpea.scotland.gov.uk/CaseDetails.aspx?id=121575. The documents can be found by clicking on the tab ‘expenses’ and include a) the claim for expenses submitted on behalf of Wildcat haven, and b) the response by the applicant to the expenses claim. You can also find c) a copy of Scottish Ministers decision on the expenses claim, which includes within it, a copy of the reporter’s report on expenses, under the ‘Decision’ tab.

Under the terms of the exception at 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. If you do not have internet access to obtain this information from the links to websites in this letter, please contact me again and I will send you a paper copy. 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, as the information is already publicly available.

One document is attached for your convenience which was not published to our website. This relates to an online press article, which was included within the claim for expenses submitted by Wildcat Haven. 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. You will note that this information has been redacted throughout the disclosed document.

In terms of your request for copies of ‘invoices or receipts (if any were provided) for all individuals and companies that comprised expenses’, whilst our aim is to provide information whenever possible, in this instance the Scottish Government does not have the information you have requested. 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 no such invoices or receipts were required or provided. This exception is subject to the 'public interest test'. Despite not holding this information, we have a statutory obligation to apply this 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 the information requested, clearly we cannot provide invoices or receipts that we do not hold. 

If it may help to clarify that in cases dealt with under the Electricity Act 1989, the Local Government (Scotland) Act 1973 (section 210) enables Scottish Ministers to make awards to any party in relation to expenses they have incurred, to be paid by another party. I attach a link to our Code of Practice for handling inquiries under ‘The Act’ for your convenience Electricity Act inquiries: guidance - gov.scot (www.gov.scot). The code of practice sets out the criteria that DPEA will apply in exercising that power. Parties will normally be expected to pay their own expenses. An applicant will not be awarded expenses simply because consent is granted, nor will a planning authority or objector be awarded expenses simply on the grounds that the application is refused. Awards of expenses will only be made in cases where a party has, in the opinion of the reporter, acted unreasonably and, as a result, has caused unnecessary expense for the party making the claim.

Normally parties are expected to agree expenses between themselves. Where this is unsuccessful the reporter may remit the account of expenses to the Auditor of the court of Session forresolution. You will see in this case Scottish Ministers agreed with the reporter and no award of expenses was made.

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.

EIR 202300379514 - Information Released - Annex

File type

PDF

File size

2.8 MB