- 23 Feb 2018
FOI reference: FOI/18/00230
Date received: 23 October 2017
Date responded: 22 February 2018
1. The declared interests of Benny Higgins and the members of the advisory group (along with their names) who will be developing the Implementation Plan for the Scottish National Investment Bank.
2. Correspondence and records of meetings or other communications between Benny Higgins (or representatives of Benny Higgins) and the Scottish Government and its ministers - in particular where this related to his appointment to the Scottish National Investment Bank role, or where there is any reference to Charlotte Street Partners.
3. Correspondence and records of meetings or other communications between Charlotte Street Partners and the Scottish Government and its ministers, where this included reference to Benny Higgins, or to Tesco Bank, or to the Scottish National Investment Bank.
Further to my letter of 30/01/2018, I have now completed my review of our failure to respond to your request under the Freedom of Information (Scotland) Act 2002 (FOISA).
In accordance with section 21(4) of FOISA, I have also reached a decision on your request.
I am very sorry for the lengthy delay in responding to your request. This is due to administrative oversight on behalf of the individual managing your request. I can now provide our response to your original request.
While our aim is to provide information whenever possible, in this instance we are unable to provide some of the information you have requested because exemptions under sections: S.14 (2) (repeated requests), S.25 (1) (Information that is Otherwise Accessible), S.29(1)(a) (Formulation or Development of Scottish Government Policy) and S.38(1)(b) (third party data) of FOISA. The reasons why these exemptions apply are explained below.
Some of the information you have requested in relation to the members of Benny Higgins' Advisory Group is available from the consultation document provided alongside the Scottish National Investment Bank Consultation which can be found at https://consult.gov.scot/economic-policy-unit/scottish-national-investment-bank/.
Some of the information you have requested in relation to Benny Higgins correspondence and his appointment to the Scottish National Investment Bank role is available from Scottish Government's published FOIs at /publications/?term=Bank&publicationTypes=foi. If you use the term Bank when searching for FOIs you will find the list of the recent requests we have received on the Scottish National Investment Bank. I would draw your attention to FOI/17/02387 (/publications/foi-17-02387/) and FOI/17/0222 (/publications/foi-17-02222/) which will provide the specific information you have requested. However, you may find the other FOIs of interest.
Reasons for not providing information
The Scottish Government does not have the information you have asked for on the declared interests of Mr Higgins and his Advisory Group. The members of the Advisory Panel were identified and appointed by Mr Benny Higgins for the range of experience they brought to the project. They were not appointed by the Scottish Government and are not being remunerated for their work on the group, therefore there is no jurisdiction for Ministers to request their declared interests.
With regard to the Senior Civil Servants who are members of the group, members of the Senior Civil Service (SCS) must not engage in any appointments or undertakings which may conflict with the interests of the organisation or be inconsistent with their position and values as a civil servant. We have robust procedures in place regarding civil servants registering their interest, which ensures that any interests that are registered are scrutinised for any conflict of interest and if necessary appropriate measures are put in place to mitigate the conflict.
Senior Civil Servants discuss any potential conflict of interests as part of their bi- annual performance appraisal process. They are also reminded about the need to register their interests when they join SG as part of their induction process and whenever they move to a new post. We are under no statutory obligation to publish this information for Senior Civil Servants. Such information by its nature is primarily about the private lives of these officials and their family members, we need to consider the balance of public interest against the rights of these individual/s and any potential for harm or distress to the individuals.
While our aim is to provide information whenever possible, in this instance we are unable to provide some of the information you have requested because an exemption under s.38.(1)(b) of FOISA applies to that information. The recommendations of the group will be included in the Implementation Plan, which will be published soon and considered by Ministers in due course. If there is a need for further due diligence at the stage where Ministers consider any advice, this will be carried out at that stage.
In addition to this there has been no correspondence or meetings between Scottish Government or its Ministers and Charlotte Street Partners in relation to the Scottish National Investment Bank. There has also been no correspondence or meetings between Benny Higgins and Scottish Government or its Ministers in relation to the Scottish National Investment Bank where Charlotte Street Partners was referenced.
As mentioned in my previous clarification email Mr Higgins has engaged with the Scottish Government on a number of issues and for the purpose of this request we have responded in relation to his role with the Scottish National Investment Bank. As Mr Higgins engages with a number of Scottish Government departments it is estimated that a full search of correspondence relating to him and Tesco Bank would require a government wide trawl, which would exceed the upper cost limit. Under section 12 of FOISA, if we estimate that the cost of locating, retrieving and providing the information requested will exceed the £600 upper cost limit, we do not have to comply with the request.
In an effort to provide as much information as possible and in the absence of confirmation we have narrowed the scope of this request to cover the topic outlined in the previous questions. If however, you would like to cover additional areas of Mr Higgins interaction with Scottish Government please do not hesitate to provide additional FOI requests.
This is a formal notice under section 17(1) of FOISA that the Scottish Government does not have the information you have requested.
An exemption applies, subject to the public interest test.
While our aim is to provide information whenever possible, under section 14(2) of FOISA a public authority is not required to comply with a request for information if it is identical or substantially similar to a request which it has already complied with, unless a reasonable amount of time has elapsed between the two requests. This request is substantially similar to your previous request which we complied with on 15/11/2017. The Scottish Information Commissioner's guidance on repeated requests at: http://www.itspublicknowledge.info/Law/FOISA-EIRsGuidance/Section14/Section14Overview.asp says that in considering whether a reasonable period of time has elapsed between the previous request and the new request, there are two questions which will help the authority:
(i) has the information changed?
(ii) have the circumstances changed?
In this case, we have considered the circumstances and provided the relevant information in relation to previous requests. In addition to this we have provided the required update between the last request responded to and your request.
Under section 25(1) of FOISA, we do not have to give you information which is already reasonably accessible to you. If, however, you do not have internet access to obtain this information from the website(s) listed or have any difficulty retrieving this information, then please contact me again and I will send you a paper copy.
An exemption under section 29(1)(a) Formulation or Development of Scottish Government Policy of FOISA applies to some of the information you have requested because it relates to the formulation of the Scottish Government's policy on the Scottish National Investment Bank.
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 high quality policy and decision-making, and in the properly considered implementation and development of policies and decisions. This means that Ministers and officials need to be able to consider all available options and to debate those rigorously, to fully understand their possible implications. Their candour in doing so will be affected by their assessment of whether the discussions on the Scottish National Investment Bank will be disclosed in the near future, when it may undermine or constrain the Government's view on that and related policies.
An exemption applies, is not subject to the public interest test
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, ie names/contact details of individuals, and disclosing it would contravene the data protection principles in Schedule 1 to the Data Protection Act 1998. 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 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
Please quote the FOI reference
Central Enquiry Unit
Phone: 0300 244 4000
The Scottish Government
St Andrew's House