Correspondence relating to auditor of Dalzell Steelworks and Lochaber Smelter: FOI review

Information requested

Any information held by the Scottish Government, including internal and external correspondence, on the decision of the auditors of Dalzell steelworks and the Lochaber smelter (Alvance British Aluminium) to resign. The time period for this FOI request should be from 1 July 2022 to date.

I am writing to you to request an internal review of this decision.

Far too much information has been redacted without due consideration of the public interest test or considering whether exemptions apply. This is particularly the case for the Section 30 and 33 exemptions. There is a clear presumption on the side of disclosure with both of these exemptions and that has clearly not been adhered to due to the degree of public interest in transparency and accountability around this issue in particular.

Response

I have been asked to look at your request afresh, to decide whether the original response should be confirmed, with or without modifications, as appropriate, or that a fresh decision should 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 I have conducted a comprehensive review of the response, and the reasons behind withholding the requested information. I have concluded that it is necessary to make some modifications to some of the information that was originally withheld.

It is worth noting initially that some of the information issued in response to your request, I have set to one side. This relates to the emails contained in the second of the two partially redacted documents. There are two emails that post-date the date of your original request, namely those sent on the 27th September at 16:26 and the 29th September at 18:10. The rest of the emails from that chain are all contained in the other partially redacted document. I have therefore disregarded those emails, and the second supporting partially redacted document, as they are deemed out of scope.

I have concluded that some information should be withheld under section 33(1)(b) – commercial interest – because if it was released it would negatively impact the business and potentially damage negotiations, day-to-day operations and other activity. The Government owes a duty of care to the handling of commercially sensitive material particularly where such a release could negatively impact upon the wider global refinancing activities of the GFG Alliance. Given the importance of the business to the economy of the West Highlands and beyond, along with the interests of the employees who work there, I have determined that the public interest test lies in favour of withholding the information. This becomes even more important when events with external parties are still ongoing and in an effort to maintain a well-functioning working relationship with companies and external advisors. Although I have considered, and have taken into account, the public interest in transparency and accounting for how public money is being spent, it is not in the public interest to release information that would prejudice this and deprive the taxpayer of best value for money. However, in my review I feel additional information initially withheld can now be released to you.

I would like to advise that the application of section 30(b)(ii) (free and frank exchange of views) was incorrectly applied. I have released the information withheld to you in this review – attached separately.

I have determined that the application of the exemption under section 30(c) of FOISA (prejudice to effective conduct of public affairs) in your initial response was incorrectly applied. Some information pertaining to the source of third party legal advice was withheld under this exemption when section 38(1)(b) – Personal information was appropriate.

Regarding the use of section 38(1)(b) - Personal information - this exemption applies to the names and contact details of officials and equivalent third party representatives within the report. This exemption is not subject to the public interest test but I can confirm there is additional information initially withheld under this exemption in error that I have now released.

Finally, I would also like to affirm that an exemption under section 36(2) of FOISA (actionable breach of confidence) applies to some of the information requested because they are letters obtained from an external organisation and disclosure would constitute an actionable breach of confidence. This is because the information is confidential, was provided in circumstances which imposed an obligation on the Scottish Government to maintain that confidentiality, and unauthorised disclosure would be to the detriment of the organisation who provided the information. 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. However, in the initial case, additional letters were incorrectly withheld in their entirety using this exemption. I have now released the letters as part of this response with sections of the text withheld.

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.

FOI - 202200327714 - information released - Annex

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