FOI/202500465706 Review of 202500460126 · FOI/EIR · already published
Suspensive condition to address outstanding Ministry of Defence objections for undetermined Section 36 applications: EIR Review
Information requested
Original Request 202500460126
“Any and all materials/correspondence relating to the use of suspensive condition to address outstanding Ministry of Defence objections for currently undetermined Section 36 applications. This should include, but is not limited to, objections related to the Eskdalemuir Seismic Array and materials which have not been made available on the Energy Consents Unit website.”
Response
I have now completed my review of our response to your initial request under the Environmental Information (Scotland) Regulations 2004 (EIRs). “Any and all materials/correspondence relating to the use of suspensive condition to address outstanding Ministry of Defence objections for currently undetermined Section 36 applications. This should include, but is not limited to, objections related to the Eskdalemuir Seismic Array and materials which have not been made available on the Energy Consents Unit website.”
You subsequently submitted a request to review the response provided “a review of the way in which the EIR regulations and potential exemptions have been implemented/interpreted in this case, which I believe to have been unnecessarily restrictive.”
I have been asked to re-examine your request, to decide whether the original response should be confirmed, with or without modifications, as appropriate, or a fresh decision be substituted. I can confirm that I was not involved in the handling or decision-making around the original response. I have considered this case again, and have conducted a comprehensive review of the response, and the reasons behind withholding the requested information.
Our response to you advised that we are unable to provide some of the information you have requested owing to the following exceptions(s) under regulation(s) of the EIRs applies to that information.
Under 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. An exception under regulation 11(2) of the EIRs (personal information) applies to some of the information. An exception under regulation 10(4)(e) of the EIRs (internal communication) applies to some of the information. An exception under regulation 10(4)(d) of the EIRs (material in the course of completion) applies to some of the information. An exception under regulation 10(5)(e) of the EIRs (commercially sensitive) applies to some of the information.
I have considered the exceptions under these regulations and have reached the following conclusions: The exception 6(1)(b) of the EIRs (information already available) 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, as the information is already publicly available.
The information can be found on the Energy Consents Portal. I attach a link to the relevant case files along with the name of the relevant documents.
Grayside Wind Farm - ECU00003446
Scottish Government - Energy Consents Unit - Application Details Application – DIO Consultations Response – 09 May 2022 – Grayside Wind Farm Redacted Additional Information – DIO on behalf of MOD – Consultation Response redacted – Grayside Windf Farm
Harestanes South Windfarm extension – ECU00002185
Scottish Government - Energy Consents Unit - Application Details
Application – Defence Infrastructure Organisation (MOD) 23 February 2021 – Harestanes Ext Application – DIO Consultation Response – 22 July 2022 – Harestanes South - Redacted
Hopsrig Wind Farm – ECU00002160
Scottish Government - Energy Consents Unit - Application Details
Application – DIO Consultation Response – 08 April 2022 – Hosprig Wind Farm – Redacted Additional Information = DIO Consultation Response Redacted – Hopsrig Wind Farm Additional Information 2 – MOD Consultation Response Redacted – Hopsrig Wind Farm
Loganhead Wind Farm – ECU00002161
Scottish Government - Energy Consents Unit - Application Details
Application – DIO Consultation Response – 08 April 2022 – Hopsrig Wind Farm – Redacted (please note this has been named incorrectly on the ECU website but the actual document is named Loganhead Wind Farm) Additional information – DIO Consultation Response redacted - Loganhead Wind Farm Additional information 2 – MOD Consultation Response redacted - Loganhead Wind Farm
Scoop Hill Wind Farm – ECU0000533
Scottish Government - Energy Consents Unit - Application Details
Technical Information Cover Letter – seismic noise Technical Information Whitepaper on Indusced Seismic Noise Technical Information – proposal for Eskdalemuir Seismic Array
The original decision is confirmed without modification.
The 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', therefore we are not required to consider if the public interest in disclosing the information outweighs the public interest in applying the exception.
The original decision is confirmed without modification.
The exception under regulation 10(5)(e) of the EIRs (confidentiality of commercial or industrial information) applies to some of the information requested because disclosure would, or would be likely to, prejudice substantially the confidentiality of commercial or industrial information where such confidentiality is provided for by law to protect a legitimate economic interest. 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 concluded that the exception was previously applied to some of the documents requested without considering whether there was any information for which the automatic assumptions should be for them to be released. I have reviewed the documentation and found that whilst there is some information to which the exception under regulation 10(5)(e) does apply, there are some inconsistencies in the application of the exemption in the previously released documents.
The information that is being release is information contained within a number of emails which is in itself not confidential. Where my review has concluded that the information should be released this information is now included in Annex A.
The original decision is confirmed with modification.
An exception under regulation 10(4)(d) of the EIRs (material in the course of completion) applies to some of the information requested. 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 concluded that the exception was previously applied to some of the documents requested without considering whether there was any information for which the automatic assumptions should be for them to be released. I have reviewed the documentation and found that the exception was applied incorrectly as the information being withheld under this exception is not incomplete information for the purposes of the exception.
The modification to the original decision is that where my review has concluded that the information should be released and this information is now included in Annex A.
An exception under regulation 10(4)(e) of the EIRs (internal communication) applies to some of the information requested. The 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 outweights the public interest in applying the exception.
I have concluded that the exception was previously applied to documents requested without considering whether there was any information for which the automatic assumptions should be for them to be released. I have therefore reviewed the documents and found that the application of the exception was applied incorrectly as the communication was not with internal bodies thus the exception cannot apply to some of the documents.
The modification to the original decision is that where my review has concluded that the information should be released and this information is now included in Annex A.
The review has found that the original request was not properly handled, in that exceptions were being applied incorrectly to some of the documents. I must apologise for this and shall inform those involved in the original request in order to avoid a recurrence.
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Detected exemption language
Information requested Original Request 202500460126 “Any and all materials/correspondence relating to the use of suspensive condition to address outstanding Ministry of Defence objections for currently undetermined Section 36 applications. “Any and all materials/correspondence relating to the use of suspensive condition to address outstanding Ministry of Defence objections for currently undetermined Section 36 applications. This should include, but is not limited to, objections related to the Eskdalemuir Seismic Array and materials which have not been made available on the Energy Consents Unit website.” You subsequently submitted a request to review the response provided “a review of the way in which the EIR regulations and potential exemptions have been implemented/interpreted in this case, which I believe to have been unnecessarily restrictive.” I have been asked to re-examine your request, to decide whether the original response should be confirmed, with or without modifications, as appropriate, or a fresh decision be substituted. An exception under regulation 10(4)(e) of the EIRs (internal communication) applies to some of the information. An exception under regulation 10(4)(d) of the EIRs (material in the course of completion) applies to some of the information.