- 22 Jul 2019
Date received: 10 Jun 2019
Date responded: 12 Jul 2019
You asked for all communications between the Scottish Government and representatives of DF Barnes regarding the sale of BiFab. This should include any emails, telephone conversations, minutes, agendas, notes (written or recorded), and any action points taken from meetings pertaining to the aforementioned. The period this should cover is 01/04/2018 until the present day.
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 exceptions under section 30 (b)(ii) - free and frank exchange of views for the purpose of deliberations and section 33 (1)(b) – commercial interests. The reasons why these exceptions apply are explained in the Annex to this letter.
Reasons for not providing information - Annex
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 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 DF Barnes on the sale of Burntisland Fabrications Ltd 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 relate to a sensitive or controversial issue such as commercial negotiations.
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 commercial or financial information, until the Government as a whole can adopt a decision 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 DF Barnes. 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.
An exemption under section 33(1)(b) of FOISA (commercial interests) applies to all 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 Burntisland Fabrications. Disclosing this information would be likely to give BiFab’s competitors an advantage in future similar tendering exercises, which would substantially prejudice the company’s ability to submit competitive tenders and so could significantly harm their commercial business.
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. However, there is a greater public interest in protecting the commercial interests of companies which enter into, Scottish Government contracts, to ensure that we are always able to obtain the best value for public money.
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