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Publication - FOI/EIR release

Correspondence on a public sector bid for the ScotRail franchise: FOI release

Published
13 June 2019
Part of
Public sector, Transport
FOI reference
FOI/19/00552
Date received
21 February 2019
Date responded
12 June 2019

Information request and response under the Freedom of Information (Scotland) Act 2002.

Information requested

You asked for:

A copy of all internal correspondence within Transport Scotland and all conversations with Scottish Ministers, or those acting on their behalf, on the subject of a public sector bid for the ScotRail franchise in the last 12 months.

Any other relevant documents held on the public sector bid in the last 12 months.

Response

Some of the material requested is already in the public domain as a result of, for instance, Scottish Parliamentary Questions and in response to previous FOISA requests:

I also enclose additional material in respect of your request.  A list of this material is provided at Annex A.

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 of exemption(s) under FOISA (described below) and because a very small part of the information you have requested is personal data and its release would contravene the data protection principles in Schedule 1 to the Data Protection Act 1998.   

Some of the documents that we have released to you contain information on other topics which are out of scope with regard to this request.  This is simply because of the occasional need by officials to combine information in the same item of correspondence during the course of normal business.   This material has been redacted.

Reasons for not providing information

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 and other officials before the Scottish Government reaches a settled public view.  Disclosing the content of free and frank advice on a public sector bid, and a public sector bidder will substantially inhibit the provision of such advice in the future, particularly because these discussions are still ongoing, and these discussions relate to a sensitive or controversial issue such as State aid and the Market Economy Investor Principle.

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 and other officials, as part of the process of exploring and refining the Government’s position on this topic, until the Government as a whole can adopt a position 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 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.

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 a public sector bid and public sector bidder 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 (ie this topic).

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 position on this topic, until the Government as a whole can adopt a position 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 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.

Section 30(b)(ii) – free and frank exchange of views for the purposes of deliberation in relation to communications/meetings with external stakeholders
An exemption under section 30(b)(ii) of FOISA (free and frank exchange of views in relation to external stakeholders) 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 issues and options with external stakeholders before the Scottish Government reaches a settled public view.  Disclosing the content of these discussions with, for instance, David MacBrayne Limited on this topic will substantially inhibit such discussions in the future, because these stakeholders will be reluctant to provide their views fully and frankly if they believe that those views are likely to be made public, particularly while these discussions are still ongoing and decisions have not been taken.

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 communicate with appropriate external stakeholders as part of the process of exploring and refining the Government’s position on this topic, until the Government as a whole can adopt a position that is sound and likely to be effective.  This private space is essential to enable all options to be properly considered, so that good decisions can be taken based on fully informed advice and evidence, such as that provided by David MacBrayne Limited.  Premature disclosure is likely to undermine the full and frank discussion of issues between the Scottish Government and these stakeholders, which in turn will undermine the quality of the decision making process, which would not be in the public interest.  There is also an important public interest in avoiding the loss of stakeholder confidence in cases where they thought they were providing comments in confidence, which would be inevitable if an individual’s contribution was released against their wishes.

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 commercial interests.  Contractual information relating to particular projects, eg disclosing this information would be likely to give other competitors an advantage in future similar tendering exercises, which would substantially prejudice an ability to submit competitive tenders. 

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.  

Personal information
s.38(1)(b) (personal information) and incidental references to officials (or other individuals acting in their business/professional capacity), applies to a very small part of the information you have requested which has been redacted.  This relates to individuals’ names and contact details.  It is exempt from release because it is personal data and its release would contravene the data protection principles in Schedule 1 to the Data Protection Act 1998.  

About FOI
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.

FOI-19-00552 - Annex A
2 page PDF
131.2 kB
FOI-19-00552 - Information Released 1
70 page PDF
1.3 MB
FOI-19-00552 - Information Released 2
47 page PDF
1.1 MB

Contact

Please quote the FOI reference
Central Enquiry Unit
Email: ceu@gov.scot
Phone: 0300 244 4000

The Scottish Government
St Andrews House
Regent Road
Edinburgh
EH1 3DG

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