Publication - FOI/EIR release

Green Volt Project correspondence: EIR release

Published: 12 November 2024
Directorate: Marine Directorate
Topic: Marine and fisheries, Public sector
FOI reference: FOI/202400434817
Date received: 3 October 2024
Date responded: 30 October 2024

Information request and response under the Environmental Information (Scotland) Regulations 2004.

Information requested

“May I request the following information under freedom of information legislation:

All email or letter correspondence received by the Scottish Government from external organisations relating to the Green Volt Project since 15 January 2023.

For Scottish Ministers and special advisers, all instant message exchanges they have had with external individuals (i.e. anyone not working for the Scottish Government or one of its agencies) regarding the Green Volt project since 15 January 2023. Please provide these messages with in full.

All meetings between any Scottish Minister or special adviser and the Scottish Government’s Marine Licensing Operations Team between 15 January 2023 and 22 April 2024 at which the Green Volt project was discussed. Please provide a list of all meetings (including if they were on teams or zoom), the minutes of those meetings, the attendees of those meetings and the dates of those meetings.

All correspondence between any Scottish Minister or special adviser and the Scottish Government’s Marine Licensing Operations Team between 15 January 2023 and 22 April 2024 where the Green Volt project was discussed. Please provide all this correspondence in full whether it is via email, letter, instant messages or phone calls.

Thank you for your assistance.”

On 7 October 2024 we sought some clarification with regard to the above:-

“As the request in questions 1 and 4 above ask for all correspondence…. Our searches are bringing into scope a very large number of documents which may make a response unmanageable. They will bring up every document even if just the phrase “Green Volt” is mentioned. Therefore, I wondered if there is any particular “external organisation” you are interested in? This information would help us to narrow down our searches and hopefully make the request more manageable so we could respond with the information you require.

I would appreciate a response as soon as possible or at the latest by close of business on Tuesday 8th of October.

Thank you in advance for any additional guidance you can provide.”

You confirmed the following on the 7 October 2024:-

“For question one, this can just be limited to any correspondence from the company Flotation Energy (or any of their staff) and Stephen Flynn (or any of his staff).

For question four however, given that I have already limited it to correspondence between Scottish Ministers/advisers and the Marine Licensing team, I do not wish to have this limited any further.”

We sought further clarification with regard to the above on the 7 October 2024:-

“With regards to question 1, correspondence submitted by any applicant and held by MD-LOT will be detailed and numerous in terms of the application and supporting information submitted - environmental impact assessment and Habitats Regulation Assessment documentation in particular.

Would you be able to clarify whether you are requesting correspondence between Flotation Energy and Stephen Flynn which MD-LOT have been copied into rather than correspondence with MD LOT and the applicant.”

You confirmed the following on 7 October 2024:-

“Just to clarify I would like both sorts of correspondence you have set out below.”

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

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 exceptions under, regulation 10(4)(b) Manifestly unreasonable, 10(4)(a) Information not held and regulation 11(2) personal data of a third party of the EIRs applies to that information. The reasons why these exceptions apply are explained in the Annex to this letter.

Response to question 1

In this instance, we are applying Regulation 10(4)(b) of the Environmental Information (Scotland) Regulations 2004 (the EIRs) which allows a Scottish public authority to refuse to disclose environmental information if the request for information has been considered to be manifestly unreasonable.

I note your clarification responses above. You may find it helpful to look at the Scottish Information Commissioner's 'Tips for requesting information under FOI and the EIRs' on his website at: How do I ask for information? | Scottish Information Commissioner (foi.scot).

Response to question 2

While our aim is to provide information whenever possible, in this instance the Scottish Government does not have the information you have requested. Therefore, we are refusing your request under the exception at regulation 10(4)(a) of the EIRs.
Response to question 3

I enclose some of the information requested. 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 regulation 11(2) - personal information of a third party, of the EIRs apply to that information.

The information supplied to you continues to be protected by the Copyright, Designs and Patents Act 1988. You are free to use it for your own purposes, including any non-commercial research you are doing and for the purposes of news reporting. Any other re-use, for example commercial publication, would require the permission of the copyright holder. Most documents supplied by the Scottish Government will have been produced by government officials and will be Crown Copyright. You can find details on the arrangements for re-using Crown Copyright material on the National Archives website at: http://www.nationalarchives.gov.uk/doc/open-government-licence/version/3/

Information you receive which is not subject to Crown Copyright continues to be protected by the copyright of the person, or organization, from which the information originated. You must ensure that you gain their permission before reproducing any third party (non-Crown Copyright information).”

ANNEX
REASONS FOR NOT PROVIDING INFORMATION

Manifestly unreasonable request

Regulation 10(4)(b) of the Environmental Information (Scotland) Regulations 2004 (the EIRs) allows a Scottish public authority to refuse to disclose environmental information if the request for information is manifestly unreasonable. The Scottish Information Commissioner’s guidance on the regulation 10(4)(b) exception at: http://www.itspublicknowledge.info/Law/EIRs/EIRsExceptions.aspx says that there may “be instances where it is appropriate for the Commissioner to consider the proportionality of the burden on the public authority in terms of the costs and resources involved in dealing with a request when considering the application of this exception”.

In this case, the volume of information held with regard to the project would require a significant amount of staff resource to provide the information for this request. The staff costs in locating, redacting and preparing the information for issue is burdensome and would have a detrimental impact on the time of the staff involved. Having considered regulation 7 of the EIRs with regard to a 20 working day extension, the request would still be unmanageable due to the volume of information to be considered. For these reasons, we consider that your request is manifestly unreasonable and so we are refusing it under regulation 10(4)(b).

As the exception is conditional we have applied the ‘public interest test’. This means we have, in all the circumstances of this case, considered if the public interest in disclosing 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 Green Volt project, this is outweighed by the public interest in ensuring the efficient and effective use of public resources by not incurring excessive costs when complying with information requests.

Information not held

Regulation 10(4)(a) of the Environmental Information (Scotland) Regulations 2004 (the EIRs) allows public authorities to refuse to make environmental information available if they don’t hold the information when the request is received.

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 the Green Volt project we cannot provide information which we do not hold.

Personal Data of a Third Party

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

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