Information relating to the introducing of RET to Northern Isles ferry routes: FOI release

You asked for:

“the following matters relating to the introducing of Road Equivalent Tariff to Northern Isles ferry routes:

1. Dates of meetings between Scottish Ministers and/or Transport Scotland with commercial operators operating ferry services in the Northern Isles. 

2. Any minutes kept of such meetings.

3. Any other materials (emails, letters etc) relating to the content of such meetings. 

4. Any materials relating to the potential for legal action by commercial operators should RET be introduced without agreement with all commercial operators.”

While our aim is to provide information whenever possible, in this instance some of the information you have requested has been redacted due to exemptions under sections:

s.29(1)(a) – Formulation or development of Scottish Government Policy;

 s.29(1)(b) and (c) - Ministerial communications and advice by the Law Officers;

s.30 (b)(i) and (ii) – Free and frank provision of advice and exchange of views;

s.33 (1) (b) – Commercial interests; and

s.38(1) – Personal data.

All material under your request 4 is exempt under above s.29(1)(b) and (c).

The reasons why these exemptions apply are explained below.

An exemption applies.

Section 29(1)(a) – formulation or development of government policy.

An exemption under section 29(1)(a) of FOISA (formulation or development of government policy) applies to some of the information requested because it relates to the formulation and development of the Scottish Government’s policy on introducing reduced fares on subsidised ferry services to the Northern Isles.

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 candor in doing so will be affected by their assessment of whether the discussions on reducing ferry fares to the Northern Isles will be disclosed in the near future, when it may undermine or constrain the Government’s view on that policy while it is still under discussion and development.

Section 29(1)(b) – Ministerial communications.

An exemption under section 29(1)(b) of FOISA (Ministerial communications) applies to some of the information requested because it relates to communications between Scottish Ministers.

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 Ministers a private space within which issues and policy positions can be explored and refined, until the Government as a whole can reach a decision that is sound and likely to be effective. This private thinking space also allows for all options to be properly considered, so that good policy decisions can be taken. Premature disclosure is likely to undermine the full and frank discussion of issues between Ministers, which in turn will undermine the quality of the policy and decision making process.

Section 29(1)(c) – Law Officers’ advice [in relation to the competence of a Scottish Parliament Bill introduced by the Scottish Government or Law Officer advice on EU membership]. 

An exemption under section 29(1)(c) of FOISA (Law Officers’ advice) applies to some of the information requested because it relates to the provision of advice by the Law Officers.

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 maintaining the Law Officer Convention (reflected in the Scottish Ministerial Code), which requires that advice provided by the Law Officers should not be divulged except in exceptional circumstances and with the prior consent of the Law Officers.  Parliament has also given particular statutory protection to the content of Law Officer advice or requests for their advice to ensure that the government is able to obtain frank and full legal advice in confidence from them (see for example the HM Treasury and the Information Commissioner case, 21 July 2009).

Section 30(b)(i) – free and frank provision of advice  [in relation to Cabinet/ Ministerial/official discussions and policy formulation/development].

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 provision of advice. This exemption recognises the need for officials to have a private space within which to provide free and frank advice to Ministers before the Scottish Government reaches a settled public view. Disclosing the content of free and frank advice on reducing ferry fares on subsidised services to the Northern Isles will substantially inhibit the provision of such advice in the future, particularly because these discussions are still ongoing and decisions have not been taken, and these discussions relate to a sensitive or controversial issue such as the involvement of commercial operators.

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 can provide full and frank advice to Ministers, as part of the process of exploring and refining the Government’s policy position on reducing ferry fares on subsidised services to the Northern Isles until the Government as a whole can adopt a decision that is sound and likely to be effective. 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. Premature 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 policy decision making process, which would not be in the public interest.

Section 30(b)(ii) – free and frank exchange of views for the purposes of deliberation [in relation to Cabinet/Ministerial/official discussions and policy formulation/development].

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 Ministers and officials to have a private space within which to discuss and explore options before the Scottish Government reaches a settled public view. Disclosing the content of free and frank discussions on reducing ferry fares on subsidised services to the Northern Isles will substantially inhibit such discussions in the future, particularly because these discussions are still ongoing and decisions have not been taken, and/or these discussions relate to a sensitive or controversial issue such as the involvement of commercial operators.

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 Ministers and officials a private space within which to explore and refine the Government’s policy position on reducing ferry fares on subsidised services to the Northern Isles until the Government as a whole can adopt a policy decision that is sound and likely to be effective. This private thinking space is essential to enable all options to be properly considered, so that good policy decisions can be taken. Premature 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 policy decision making process, which would not be in the public interest.

Section 33(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 Pentland Ferries and John O’Groats Ferries. Disclosing this information would be likely to give both operator’s potential competitors an advantage in any future tendering exercises, which would substantially prejudice their ability to submit competitive tenders and so could significantly harm their commercial business.

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, and to help account for the expenditure of public money. However, there is a greater public interest in protecting the commercial interests of companies which may tender for, or enter into, Scottish Government contracts, to ensure that we are always able to obtain the best value for public  money.

Section 38(1)(b) – applicant has asked for personal data of a third party.

An exemption under section 38(1)(b) of FOISA (personal information) applies to a small amount of the information requested because it is personal data of a third party, i.e. lower level official’s names and contact details 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.