Publication - FOI/EIR release

Tree Health Pest & Disease Surveys results: FOI Review

Published: 12 Aug 2020

Information request and response under the Freedom of Information (Scotland) Act 2002

Published:
12 Aug 2020
Tree Health Pest & Disease Surveys results: FOI Review
FOI reference: FOI/202000050145
Date received: 4 Jun 2020
Date responded: 17 Jul 2020
Information requested

Q1. Request for contact details for a senior person in the procurement division.
Q3. Evidence of legal advice being sought and obtained.
Q4. Evidence to substantiate Lynda Collin’s claim that an assessment of the conduct of the tender took place and that it was found that the process had met the requirements of the Public Contracts (Scotland) Regulations 2015.
Q5. Evidence that a review of case law and subsequent analysis took place pertaining to the Public Contracts (Scotland) Regulations 2015 in the manner described by Lynda Collins in her email of 16 April.
 

Response

I have now completed my review of our response to your request under the Freedom of Information (Scotland) Act 2002 (FOISA).

I have concluded that the original decision should be confirmed, with modifications. Some information which you have requested in your letter is now being provided.

In particular on your question 4, below, you claim that the answer we provided was incorrect. On reviewing that we should have been clear that the information sought is not held and applied the relevant FOISA exemption. I apologise that this was not clear and the relevant FOISA exemption was not applied.

Furthermore there are points which you raise which can be clarified and additional information provided which is set out below.
In your letter you raise the following points which correspond with the numbered points in our reply of 4 June.

Q1. Request for contact details for a senior person in the procurement division.
You requested the following additional information:

i). The name, job title, email address and postal address for Mr Graham’s line manager.

ii). The name, job title, email address and postal address for the most senior person within the Scottish government’s procurement function. This is to be the person who is responsible for the performance of Mr Graham’s department and who would report directly to the minister in such matters.

The information is provided below.
Mr Graham’s line manager is:
Dr Graeme Cook
Deputy Director
Head of Procurement Services
Graeme.Cook@gov.scot
3A South
Victoria Quay
The Shore
EDINBURGH
EH6 6QQ

The head of division is:
Mr Nick Ford
Director of Procurement and Property
DirectorSPPD@gov.scot
3A South
Victoria Quay
The Shore
EDINBURGH
EH6 6QQ

Q3. Evidence of legal advice being sought and obtained.
You have requested sight of information to establish that competent legal advice was sought by Scottish Government officials. I have attached a copy of an email which shows that legal advice was sought at Annex B. The detail of the advice remains with held under exemption under 36(1) of FOISA; further detail on the application of this exemption is set out in Annex A.

Q4. Evidence to substantiate Lynda Collin’s claim that an assessment of the conduct of the tender took place and that it was found that the process had met the requirements of the Public Contracts (Scotland) Regulations 2015. 

You claim that the information requested was not previously provided in Ms Malloy’s letter of 24 April 2020 and you note:
i). A ‘detailed commentary’ as to how Ms Malloy (or her office) considered that the conduct of the procurement exercise complied with the Public Contracts (Scotland) Regulations 2015, as specified by Lynda Collin in an email of 16 April.

I ask for this information as I wish to know in detail about the act of assessment of compliance and how the process was subsequently deemed to comply with the Regulations. This information was
not provided in Ms Malloy’s subsequent correspondence as Mr Cummings states. Instead, Ms Malloy merely expresses her opinion that she is satisfied that the process was robust, but does not provide any information to substantiate this or provide the information required by my FOI request.
ii). File notes and any other records in respect of the above-mentioned assessment of the conduct of the procurement exercise.
This information was not supplied with Ms Malloy’s letter and Mr Cummings is incorrect in stating that it was. It is important to my client that it is proven that the review took place, and thus I request this information again and ask for a review of Mr Cummings’ response to my FOI request.

Answer: I apologise that this was not made clear in the response and we can confirm that no information is held (i.e. file notes or records) on the review, but can confirm that Mrs Malloy did review the outcome of the evaluation against the stated criteria in the Instructions to Tenderers and was content that process had been followed.
Therefore the Scottish Government does not have the information you have asked for because no record was created. This is a formal notice under section 17(1) of FOISA that the Scottish Government does not have the information you have requested.

Q5. Evidence that a review of case law and subsequent analysis took place pertaining to the Public Contracts (Scotland) Regulations 2015 in the manner described by Lynda Collins in her email of 16 April.
You have requested that, as with question 3, the information requested can be provided in redacted form without affecting the legal privilege.

Furthermore you state that:
“In this regard, I seek only enough information to satisfy my client that the review of case law took place that was described in Ms Collins’ email of 16 April. This fact can be proven without revealing any legally privileged data by producing redacted file notes of telephone conversations between competent persons in your organisation (plus redacted emails, other documentary evidence, etc) and Ms Collin’s office that occurred for the purpose of providing the advice necessary she sought and that will substantiate Ms Collin’s claim in her email.
I feel that, if the appeal was conducted in an adequately rigorous, impartial and open manner to be expected in this situation, such information should exist in the case file. Obtaining it is important to my client for, if the evidence is absent, it seems likely that the statement appearing in Ms Collins’ email of 16 April was an attempt to frustrate my appeal on his behalf and to deter any further investigations or analysis, a fact that would be a very serious transgression.” 

Answer: Please see the answer to question 3 and the information attached at Annex B. This shows that legal advice was sought and that it covered case law.

ANNEX A
REASONS FOR NOT PROVIDING INFORMATION
Section 36(1) - legal advice

An exemption under section 36(1) of FOISA (confidentiality in legal proceedings) applies to some of the information requested because it is legal advice and disclosure would breach legal professional privilege.

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. We recognise that there is some public interest in release as part of open and transparent government, and to inform public debate. However, this is outweighed by the strong public interest in maintaining the right to confidentiality of communications between legal advisers and clients, to ensure that Ministers and officials are able to receive legal advice in confidence, like any other public or private organisation.

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.

Contact

Please quote the FOI reference
Central Enquiry Unit
Email: ceu@gov.scot
Phone: 0300 244 4000

The Scottish Government
St Andrews House
Regent Road
Edinburgh
EH1 3DG