Cabinet and Corporate Business Secretariat
T: XXXX[information redacted under regulation 11(2) of the EIRs]
E: XXXX[information redacted under regulation 11(2) of the EIRs] /
Julie Frew
Office of the Scottish Information Commissioner
KinburnCastle
Doubledykes Road
St Andrews
KY16 9DS /
___
Your ref:201201193
Our ref:FOI/12/00534
15 August2012
DearJulie
APPLICATION FOR DECISION BY THE SCOTTISH INFORMATION COMMISSIONER
APPLICANT: Global Alliance Against Global Aquaculture
Thank you for your letter of 18 July regarding Mr Staniford’s request for“how many seals were actually killed and by which salmon farming companies at which sites”
Responses to your questions are set out below.
1. All the information is contained within the completed seal licence return forms.
2. We do not consider that any other returns for 2012 fall within the scope.
3. The two returns mentioned are in fact in respect of the final quarter of 2011 rather than the first quarter of 2012. The first quarter of 2012 did not, in fact, end until 30 April 2012 so that all returns for this period would fall outwith the scope of the request.
Environmental Information
4. We should like to rely upon the exemption contained in section 39(2) of the FOISA. As the information requested is ‘environmental information’ for the purposes of the Environmental Information (Scotland) Regulations 2004 (EIRs), we are required to deal with the request under those Regulations. We are applying the exemption at section 39(2) of the Freedom of Information (Scotland) Act 2002 (FOISA), so we do not also have to deal with the request under FOISA. As the exemption 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 the information under FOISA 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 and that as there is a statutory right of access within the EIRs to environmental information, then the public interest in consideration of the information under FOISA is outweighed by the public interest in consideration of access to this information under the EIRs.
The Scottish Government and Marine Scotland are fully aware that that the fish farm locations have been published, however, it is not this but the number of seals shot at each of these sites that is the sensitive information here. We realise that it might be possible in one or two cases to identify possible locations of shooting but it would be difficult for activists to target such sites for direct action if they could not establish without doubt that seals had actually been shot there.
Regulation 10(5)(a) of the EIRs
5. We are not relying upon a different aspect of regulation 10(5)(a).
6. The harm that would be likely to be caused to public safety by the disclosure of this information relates to the strong likelihood of direct action being taken by some NGOs against specific sites and against individuals employed at sites where seals have been shot. Seal management, which involves lethal measures, is a highly sensitive issue which arouses extremely strong emotions amongst many people.
While we are not suggesting that Mr Staniford or the Alliance will themselves initiate any direct action, we have information suggesting that others are likely to do so. On 7 September 2011 the Cabinet Secretary met with XXXX[information redacted under regulation 11(2) of the EIRs], Volunteer Coordinator in Scotland for Sea Shepherd Conservation Society. In this meeting, XXXX[information redacted under regulation 11(2) of the EIRs] issued a scarcely veiled threat that his organisation would be prepared to take direct action to prevent seal shooting under the seal licensing system in Scotland. Sea Shepherdhave a track record of taking such direct action – viz. press coverage of a recent case in Costa Rica see link: XXXX[information redacted under regulation 11(2) of the EIRs] provided no specific details of what kind of action he had in mind, possibly for tactical reasons.
In the early 1980s, however, when actual culling of seals to control their populations was still permitted in Scotland, environmental and animal welfare activists stationed themselves between the marksmen undertaking the seal cull and their targets. In this fashion, they were able to force the cancellation of an Orkney seal cull because of the risks to public safety resulting from their actions. In other instances, in the past fringe animal rights groups have targeted individuals implicated, either directly or indirectly in shooting seals with verbal abuse, hate mail, unpleasant and noxious parcels, physical intimidation and even assault and have also caused property damage. More recent cases of direct action in response to the Canadian seal cull and Japanese whaling activity demonstrate that the risk of direct action is still very much present. In Scotland, there is no longer any culling to control seal populations and the above information is only provided as an example of the type of direct action that might occur.
In the absence of information about which individual fish farm sites are actually undertaking seal shooting, it is extremely difficult for Sea Shepherdor similar groups to take direct action but if such information was released it is very likely that such direct action would follow at selected sites.
The Alliance’s comment about risks to the public from seal shooting shows little knowledge either of the general restrictions on the use of firearms or of the seal licensing system in Scotland. In most cases, fish farms are located in remote areas and there is little likelihood of members of the public being present when seals are shot. Nevertheless, the seal licensing system follows a Scottish Seal Management Code of Practice developed with input from the police, the British Association for Shooting and Conservation and the Scottish SPCA and seal marksmen complete a Professional Development Award in Seal Management developed by the Scottish Qualification Authority. This ensures that any seal shooting is undertaken with minimum risk to public safety.
7. We recognise that it might be in the public interest to know where seals were being shot in order to establish the reasons for this and to understand how we might develop practical new measures to reduce the necessity for this in the future. This is certainly what Marine Scotland intends to do in consultation with Scottish Natural Heritage Sea Mammal Research Unit and Marine Scotland Science. If we could be guaranteed that there would be no direct action in response to the release of this information we would release it. However, even if the Alliance, for example, was prepared to provide such a guarantee once the information was in the public domain it is unlikely that other groups would do so.
It might be argued that the public has a right to know whether or not individual fish farming companies might have a more or less seal friendly policy so that they can make an informed decision about whether or not to purchase salmon produced by that company. We have recognised this legitimate concern at the review stage by releasing information on the numbers of seals shot by almost all companies. This allows the public to decide whether or not to purchase fish produced by particular company. The release of information about numbers of seals shot at individual sites is not necessary for this purpose since members of the public will not know which sites the fish came from at the point of sale.
A number of accreditation schemes exist for salmon farming, including Freedom Foods, Global G.A.P. and the Code of Good Practice for Scottish Finfish Aquaculture. These set environmental and welfare standards for farmed salmon. This can include monitoring of seal shooting at individual fish farm sites. They provide assurances based on reports provided under this monitoring but this does not encompass providing information on numbers of seals shot at each site to the public.
Unfortunately, the risk of direct action resulting from release of this information is likely to prevent serious investigation of the reasons for shooting seals at individual sites and, possibly ultimately, prevent the seal licensing system from operating effectively at all. If fish farm sites become the focus for direct action, as a result of the release of information about seals shot under the licensing system, some may also decide to withdraw from the licensing system and shoot seals illegally. This would not be in the public interest since such shooting would be unregulated and unreported and could have unforeseen impacts on seal populations across Scotland and pose risks to public safety.
We have considered all of these issues and weighed up the relative merits of each over many years. We consider on balance that the public interest is best served by not releasing information on seals shot at individual sites. The information released to date on seal shooting at company level allows the Alliance to campaign against particular companies and the public to decide whether or not to purchase salmon from particular companies. The release of information on numbers of seals shot at site level will not add to this. It does however carry a real risk of direct action by Sea Shepherd or other groups against specific sites and individuals associated with those sites. In this context, we consider that the public interest in maintaining the exception outweighs that in disclosure of the information on numbers of seals shot at individual sites.
Regulation 10(5)(g) of the EIRs
8. We consider that direct action by activists resulting from disclosure of information about seals shooting at individual sites might cause harm to the environment both directly and indirectly. The direct action itself might result in damage to the fish farm cages at a site resulting in fish escapes with possible impacts on the wild fish population. If a fish farm site is unable to protect its cages from seal predation because of direct action by activists this may also result in an increase in damage to cages and therefore in fish escapes with possible impacts on the wild fish population.
9. If the information is withheld the environment will be protected through a reduced risk of damage to cages and of fish escapes with possible impacts on the wild fish population. It will also be protect by removing the risk of companies withdrawing from the controlled and monitored seal licensing system.
10. We have considered these issues and weighed up the relative merits of each over many years. We consider on balance that the public interest is best served by not releasing information on seals shot at individual sites. The information released to date on seal shooting at company level allows the Alliance to campaign against particular companies and the public to decide whether or not to purchase salmon from particular companies. The release of information on numbers of seals shot at site level will not add to this. It does however carry a real risk of direct action by Sea Shepherdor other groups against specific sites and individuals associated with those sites. In this context, Marine Scotland considers that the public interest in maintaining the exception outweighs that in disclosure of the information on numbers of seals shot at individual sites.
I hope that this provides sufficient information for you to progress with this case.
Regards
XXXX[information redacted under regulation 11(2) of the EIRs]
Freedom of Information Unit
Scottish Government
XXXX[information redacted under regulation 11(2) of the EIRs]
St Andrew’s House, Regent Road, Edinburgh EH1 3DG/