Establishment of National Energy Company: FOI release

FOI reference: FOI/18/02509
Date received: 12 September 2018
Date responded: 10 October 2018

 

 

“Details of any civil servants briefings or analysis in 2018 on the establishment of a National Energy Company”.

 

 

I enclose a copy of some of the information you requested.

Some of the information you have requested is available from https://www.gov.scot/Topics/Business-Industry/Energy/POEC. Specifically you will wish to note the strategic outline case, published in April, and the specification of the outline business case which is currently being procured. 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, then please contact me again and I will send you a paper copy.

 

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 29(1)(a) formulation or development of government policy and 29(1)(c) Law Officers advice of FOISA apply to that information. Further exemptions under 30(b)(i) and 30(b)(ii) of FOISA (free and frank advice and exchange of views), section 33(1)(b) (commercial interests) and section 38(1)(b) (personal information) also apply. The reasons why these exemptions apply are explained below.

 

 

An exemption applies, subject to the public interest test.

Section 29(1)(a) – formulation or development of government policy s.29(1)(c) Advice by the Law Officers.
Exemptions under sections 29(1)(a) formulation or development of government policy and 29(1)(c) Law Officers advice of FOISA applies to some the information you have requested for any civil servant briefings and analysis. This information is exempt as it relates to the early development of government policy and to the provision of legal advice.

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 exemptions.

Sections 30(b)(i) and 30(b)(ii) – free and frank exchange of views for the purposes of deliberation.

Exemptions under sections 30(b)(i) and 30(b)(ii) of FOISA (free and frank advice and exchange of views) apply to some of the information requested. These exemptions apply because disclosure would, or would be likely to, inhibit substantially the free and frank provision of advice and exchange of views for the purposes of deliberation.

The exemptions recognise the need for Ministers to have a private space within which to seek advice and views from officials before reaching the settled public position which will be given. Disclosing the content of free and frank briefing material on the public energy company will substantially inhibit such briefing in the future, particularly because discussions on the issue are still ongoing and final decisions have not been taken.

 

These exemptions are 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 exemptions. We have found that, on balance, the public interest lies in favour of upholding the exemptions. 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 free and frank advice and views to Ministers in briefings. It is clearly in the public interest that Ministers can robustly defend the Government’s policies and decisions. They need full and candid advice from officials to enable them to do so. Premature 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.

 

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 parties referred to in the briefings on the establishment of the public energy company who have provided commercially sensitive information.

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 the commercial interests of organisations which provide information to the Scottish Government.

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. names/contact details of individuals, 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.