- 8 Jan 2019
Date received: 3 December 2018
Date responded: 8 January 2019
I have concluded that a different decision should be substituted.
Given the time that has passed since case FoI/17/01351 was dealt with, there should have been a reconsideration of the application of the exemptions applied at that time to take account of developments since then. In particular, the public interest test should have been reassessed in relation to the application of exemptions applied under sections 30(b)(i), 30(b)(ii) and 33(1)(b) of FOISA. Having reconsidered the public interest test in relation to the information that was previously withheld, I have decided that additional information should be released.
Please find enclosed some of the information that you have 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 30(b)(i), 33(1)(b) and 38(1)(b) of FOISA apply to the information. The reasons why these exemptions apply are explained below.
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, i.e. names and 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.
Exemptions apply, subject to the public interest test.
An exemption under section 30(b)(i) (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 the shipbuilding contract for two 100 metre dual fuel ferries with Ferguson Marine Engineering Limited (FMEL) and associated issues will substantially inhibit the provision of such advice in the future.
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 exemptions. 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 Government’s policy position on the contract. 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. 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 decision making process, which would not be in the public interest.
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 the Scottish Government, FMEL and Caledonian Maritime Assets Limited (CMAL). Disclosing some of the financial and commercial information about these organisations would put them at a competitive disadvantage.
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 these organisations in order to ensure that best value is achieved for public money and, in the case of FMEL, that its ability to operate in a competitive commercial market is not disadvantaged.
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