FMEL contingency options update: information held prior to 30 April 2018: FOI release

FOI reference: FOI/18/02868
Date received: 27 September 2018  
Date responded: 29 October 2018

 

 

You asked the Scottish Government to provide all information held prior to 30 April 2018 relating to the stated “Contingency Options” e-mail dated 30 April released in FoI/18/01835, including the matter giving rise to the contingency.

Response

 

I enclose a copy of some of the information you requested.  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 of FOISA apply. The reasons why these exemptions apply are explained below.

 

 

Exemptions apply, subject to the public interest test.
 
Exemptions apply under sections 30(b(i)) (free and frank provision of advice) and 30(b(ii)) (free and frank exchange of views) 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 free and frank exchange of views. These exemptions recognise the need for officials to have a private space within which to provide advice to, and exchange views with, Ministers and other officials before the Scottish Government reaches a settled public view. Disclosing the content of material relating to the consideration of a range of contingency options relating to FMEL will substantially inhibit the provision of such advice in the future, particularly because these discussions are still ongoing and these discussions relate to sensitive commercial and contractual issues.

 

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, and exchange views with, Ministers and other officials, as part of the process of exploring and refining the Government’s position on contingency options relating to FMEL.This private thinking space is essential to enable all options to be properly considered, based on the best available advice, so that good decisions can be taken.  
 
An exemption under section 33 (1(b)) of FOISA applies to some of the information you have requested because it relates to commercial information that may prejudice the companies involved.
 
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.  
 
Exemptions also apply under section 36(1) of FOISA as the documents contain 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 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, this information is legally privileged.