Decision making process surrounding the FMEL ferries: FOI release

Information requested

On 3 May 2022 John-Paul Marks appeared in front of the Scottish Parliament Finance Committee. He was answering questions on the decision making process surrounding the FMEL ferries. In particular he was asked if the failure to properly keep written records of decision making process was a breach of the law. He stated that he would need to go away and closely look at the situation to see if there had been a breach of the law, the implication being that he didn't know.

I find it incredible that such a highly experienced Civil Servant would not anticipate such a line of questioning and had not sought briefing papers from his staff prior to attending. Having worked in the public sector I know that this is standard practice. I am formally requesting copies of all briefing papers, emails, memos and written notes to and from the Permanent Secretary and his staff in advance of his appearance at the committee, which mention Ferguson Marine Engineering Limited, FMEL, Caledonian Maritime Assets Limited, CMAL.

Response

I enclose most of the material you have requested. However, while it is our aim to provide information whenever possible, in this instance we are unable to provide all of the information requested because an exemption(s) under section 30(b) (free and frank provision of advice or exchange of views), Section 33(1)(b) (substantial prejudice to commercial interests), Section 36(1) (legal advice) and Section 38(1)(b) (personal information) of FOISA applies to that information. The reasons why these exemptions apply are explained below.

Reasons for not Providing Information

S38(1)(b) – Personal Information

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, for example names and personal information of staff in grades below the Senior Civil Service 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.

S33(1)(b) – Commercial Interests

An exemption under section 33(1)(b) of FOISA (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 interests of any person. “Person” includes a public authority, company and partnership.Disclosing this information would be likely to give Ferguson Marine’s competitors an advantage in future similar tendering exercises, which would substantially prejudice their ability to submit competitive tenders and so could significantly harm their commercial business. This exemption is also applied where the material relates to live procurement exercises.Disclosing the information would provide market intelligence that otherwise would not be available thus impacting on the ability of the business to win contracts. The exemption also applies to the pay negotiations details contained within the documents in scope of the request.

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 a public interest in disclosing information as part of open and transparent government. However, there is a greater public interest in protecting there is a greater public interest in protecting the integrity of the procurement process and the commercial interests of tenderers.

It is clearly in the public interest that Ministers can properly consider all options and decisions can be taken on fully informed advice and evidence. They need full and candid advice from officials to enable them to do so. Disclosure of this type of information could lead to a reduction in the comprehensiveness and frankness of such advice and views in the future, which would not be in the public interest.

S30(b)(ii) – Free and Frank Exchange of Views

While our aim is to provide information whenever possible, in this instance an exemption under section 30(b)(ii) of FOISA (free and frank exchange 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 for the purposes of deliberation.This exemption recognises the need for Minister and officials to have a private space within which to discuss issues and options with external stakeholders before the Scottish Government reaches a settled public view. Disclosing the content of these discussions with the Ferguson Marine management will substantially inhibit such discussions in the future, because these stakeholders will be reluctant to provide their views fully and frankly if they believe that those views are likely to be made public.

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 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 and external stakeholders can provide free and frank advice to Ministers.

It is clearly in the public interest that Ministers can properly consider all options and decisions can be taken on fully informed advice and evidence. They need full and candid advice from officials to enable them to do so. Disclosure of this type of information could lead to a reduction in the comprehensiveness and frankness of such advice and views in the future, which would not be in the public interest.

S36(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.

FOI - 202200298441 - Attachments

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56 page PDF

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