- 30 Apr 2019
Date received: 1 Apr 2019
Date responded: 26 Apr 2019
You asked for copies of documents held by the Scottish Government which refer to the Defence Sub-group of the Aerospace, Defence, Marine and Security Industry Leadership Group dated from January 2016 onwards.
I enclose a copy of the information you requested by email attachement. 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 Section 30(b)(ii) – (free and frank exchange of views for the purposes of deliberation), Section 30(c) (substantial prejudice to the effective conduct of public affairs), Section 32(1)(b) (confidential information from another state or international organisation/court), Section 33(1)(b) (commercial interests); Section 36(2) (actionable breach of confidence) and Section 38(1)(b) (personal data of a third party) of FOISA apply to that information. The reasons why those exemptions apply are explained in the Annex to this letter.
REASONS FOR NOT PROVIDING INFORMATION
An exemption applies
An exemption under Section 38(1)(b) – applicant has asked for personal data of a third party applies to some of the information requested because it is personal data of a third party, ie names/contact details of individuals, and disclosing it would contravene the data protection principles in Schedule 1 to the Data Protection Act 1998. 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.
An exemption under Section 33 (1)(b) - disclosure would (or would be likely to) prejudice substantially the commercial interests of any person or organization.
Information which is commercially sensitive is often described as being “commercially confidential.” However, there is no single exemption in FOISA covering “commercial confidentiality”. FOISA draws a distinction between information where disclosure would have a detrimental effect on commercial interests, and information which is “confidential” under Scots law.
An exemption under Section 36 (2) - the information was obtained by a Scottish public authority and disclosing it would constitute an actionable breach of confidence.
Only the exemption in section 36(1) is subject to the public interest test in FOISA. This means that, even if the exemption applies, the information must be disclosed unless the public interest in withholding it outweighs the public interest in disclosing the information. Although the exemption in section 36(2) isn’t subject to the public interest test in FOISA, the public interest can play a role in deciding whether the exemption applies.
An exemption under Section 30(c) – substantial prejudice to the effective conduct of public affairs
It is essential for officials to be able to meet, often in confidence, with external stakeholders on a range of issues. Disclosing the information about these meetings, particularly without the consent of the stakeholder, is likely to undermine their trust in the Scottish Government and will substantially inhibit communications on this type of issue in the future. These stakeholders will be reluctant to participate in meetings if they believe that their views are likely to be made public, particularly while discussions are still ongoing. This would significantly harm the Government’s ability to carry out many aspects of its work, and could adversely affect its ability to gather all of the evidence it needs to make fully informed policies.
An exemption under Section 30(b)(ii) – free and frank exchange of views for the purposes of deliberation 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 will substantially inhibit such discussions in the future.
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 Andrews House