Publication - FOI/EIR release

Correspondence in relation to the early cancellation of Abellio's contract to run ScotRail: FOI release

Published: 22 December 2023
Topic: Public sector
FOI reference: 202200299631
Date received: 11 May 2022
Date responded: 2 June 2023

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

Information requested

Correspondence and minutes of meetings between ScotRail senior management, Abellio, Transport Scotland, Transport Secretary Michael Matheson between October and December 2019 in relation to the early cancellation of Abellio's contract to run ScotRail.
Correspondence and minutes of meetings between the same partners between January and March 2021 relating to the decision to bring ScotRail into public ownership.
Correspondence and minutes of meetings between the same partners and including transport minister Jenny Gilruth and her officials between January and May 2022 relating to ScotRail being brought into public ownership in April 2022.

For the purposes of this request, "correspondence" should be considered - but not limited to - emails, text and WhatsApp messages, phone calls, teleconferencing and any other communication between parties listed and any other outside party relating to the topic. Where phone calls are covered by this request, minutes of the call as well as the date, time and duration of the call would suffice.

Response

In relation to the point 1 above, I have provided a relevant document in attachment to this letter: Letter from Bill Reeve.
In relation to the point 2 above, please see copies of correspondence falling in the scope of your request in the attached Appendix A.
In relation to point 3, I have provided copies of relevant correspondence in the attached Appendix B.

Whilst we aim to provide information where possible, you will see that some of the information has been redacted in line with the following FOISA exemptions:

Section 30(b)(i) - Substantial inhibition to free and frank provision of advice

An exemption under section 30(b)(i) of FOISA (free and frank provision of advice) applies to some of the information requested. This exemption applies because disclosure would, or would be likely to, inhibit substantially the free and frank exchange of advice between officials, third parties and Ministers. This exemption recognises the need for officials to have a private space within which to provide free and frank advice to colleagues within Scottish Government including Ministers.

Disclosing the content of free and frank exchange of advice would inhibit the exchange of advice in future between officials and Ministers in relation to the future decision making.

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 there is a public interest in disclosing information as part of open, transparent and accountable government, and to inform public debate. However, there is a greater public interest in allowing a private space within which officials can exchange full and frank advice, as part of the process of exploring and refining the Government’s decision making process. This private thinking space is essential to enable all options to be properly considered, based on the best available advice, so that good policy decisions can be taken. Disclosure is likely to undermine the full and frank discussion of issues between officials and officials and Ministers, which in turn will undermine the quality of the decision making process, which would not be in the public interest.

Section 30(b)(ii) - Substantial inhibition to free and frank exchange of views

An exemption under section 30(b)(ii) of FOISA (free and frank provision of views) applies to some of the information requested. This exemption applies because disclosure would, or would be likely to, inhibit substantially the free and frank exchange of views. This exemption recognises the need for officials to have a private space within which to provide their views to Ministers freely.

Disclosing the content of free and frank exchange of views would inhibit the exchange of views in future between officials and Ministers in relation to areas of future policy making.

We recognise there is a public interest in disclosing information as part of open, transparent and accountable government, and to inform public debate.

However, there is a greater public interest in allowing a private thinking space within which officials can exchange full and frank views, as part of the process of exploring and refining the Government’s decision making process. This private thinking space is essential to enable all options to be properly considered, based on the best available advice, so that good policy decisions can be taken. Disclosure is likely to undermine the full and frank discussion of issues between Ministers and officials, which in turn will undermine the quality of the decision making process, which would not be in the public interest.

Section 33(1)(b) - Substantial prejudice to commercial interests

An exemption under section 33(1)(b) of FOISA (Substantial prejudice to commercial interests) applies to some of the information requested.

This exemption applies because disclosure of this particular information would, or would be likely to, prejudice substantially the commercial business of advisors contracted to provide services to Transport Scotland during the mobilisation of Scottish Rail Holdings Ltd and ScotRail Trains Ltd. Disclosing this information would be likely to result in giving advisor’s competitors an advantage in future.

Section 38(1)(b) – Third party and personal data

An exemption under section 38(1)(b) of FOISA (personal information) applies to some of the information requested because it is personal data of a third party, i.e. names and contact details of individuals and companies, 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 exemption 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 exemption.

The information that has been redacted has been clearly marked with the relevant exemption i.e. Section 30 (b)(i).

The remaining information that has been redacted is that which falls into the exemption of section 38 (1) (b) – third party and personal data.

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