- 14 Aug 2019
Date received: 11 Jul 2019
Date responded: 9 Aug 2019
You asked for “Any correspondence (letters, emails or otherwise) (a) received and (b) sent by Paul Wheelhouse regarding the delay to R100”.
I enclose a copy of some of the information you requested that was either received or sent by Paul Wheelhouse MSP. An exemption under s.25(1) (information otherwise accessible) applies to the some of the information as it can be found online. However, in support of our duty to provide advice and assistance to the applicant we are able to provide two web links and associated documents:
1) Parliamentary Question S5W-23690, answer and background note regarding steps to ensure no further delay to R100
1) Parliamentary Question S5W-2369, answer and background note measures taken around R100 in relation to the R100 delay
An additional exemption under s.29(1) (b) (ministerial communications) applies to the some of the information as it constitutes communications to or from MSPs and MPs. This exemption is subject to the public interest test and, on balance, we have found in favour of releasing some of the information. It should be noted, however, that an exemption under section 38(1)(b) of FOISA (personal information) applies to this information and some information has been redacted.
3) Four letters to/from MSPs or MPs in relation to R100.
Further information that is covered by your request has been withheld because exemptions under sections s.29(1)(a) (formulation or development of government policy), s.30(b)(i) (free and frank provision of advice) and s.33(1)(b) (substantial prejudice to commercial interests) of FOISA applies to that information. An explanation on these exemptions can be found in the Annex below.
Reasons for not providing information - Annex
Exemption(s) under sections s.29(1)(a) (formulation or development of government policy), s.30(b)(i) (free and frank provision of advice), s.33(1)(b) (substantial prejudice to commercial interests) and an exemption under section 38(1)(b) of FOISA (personal information) of FOISA applies to the information you have requested.
An exemption under section s.29(1)(a) of FOISA applies to some of the information you have requested because it relates to the formulation and development of the Scottish Government’s policy on R100 procurement process.
An exemption under section 30(b)(i) of FOISA 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 R100 will substantially inhibit the provision of such advice in the future, particularly because these discussions, as well as the R100 procurement, are still ongoing and these discussions relate to sensitive commercial issues.
An exemption under sections.33(1)(b) applies to the some of the information you have requested because it relates to the ongoing procurement for the R100 Programme and is commercially sensitive. Even where the information does not contain specific details of the procurement process, the content is likely to confer some insight on the Scottish Government’s approach as procuring body and could, therefore, influence bidder behaviour. This could be detrimental to the procurement process as well as to the businesses currently involved.
Each of these exemptions are 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 help account for the expenditure of public money.
In relation to the exemption under sections.29(1)(a), there is a greater public interest in high quality policy and decision-making, and in the properly considered implementation and development of policies and decisions. This means that Ministers and officials need to be able to consider all available options and to debate those rigorously, to fully understand their possible implications. Their candour in doing so will be affected by their assessment of whether the discussions on R100 will be disclosed in the near future, when it may undermine or constrain the Government’s view on that policy while it is still under discussion and development.
A final exemption under section 38(1)(b) of FOISA (personal information) applies to a small amount of the information requested because it is personal data of a third party, i.e. names and contact details of constituents, 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.
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