- 25 Sep 2019
Date received: 30 Jul 2019
Date responded: 25 Sep 2019
All information on the integrity or safety of central reservation barriers on sections of the M8 motorway not upgraded by the M8, M73 and M74 Motorways Improvement project in the last five years. This should include any routine examination reports which suggest the need for improvement and / or replacement. Any further discussion on whether this takes place (or does not take place) should also be included."
On 19 August we asked you to clarify exactly what information you required to help us identify the relevant documents. After discussions, it was determined that you required information only relating to inspection, maintenance and recommended replacement.
As the information you have requested is ‘environmental information’ for the purposes of the Environmental Information (Scotland) Regulations 2004 (EIRs), we are required to deal with your request under those Regulations. We are applying the exemption at section 39(2) of the Freedom of Information (Scotland) Act 2002 (FOISA), so that we do not also have to deal with your request under FOISA.
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, because there is no public interest in dealing with the same request under two different regimes. This is essentially a technical point and has no material effect on the outcome of your request.
Please find Annex A accompanying this response provides all information, subject to the redactions below, relating to inspection, maintenance and recommended replacement. 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 exceptions under regulations 10(5)(e) (substantial prejudice to confidentiality of commercial or industrial information), 10(5)(b)(i) (substantial prejudice to course of justice, fair trial, or criminal or disciplinary inquiry), and reg 11(2) (personal information) of the EIRs applies to that information.
An exception under regulation 10(5)(e) of the EIRs (substantial prejudice to confidentiality of commercial information) applies to some of the information you have requested. This exception applies because disclosure of this particular information would, or would be likely to, prejudice substantially the confidentiality of commercial information provided by Amey and Scotland TranServ and thus cause substantial harm to their commercial interests. Disclosing this information would be likely to give their competitors an advantage in future similar tendering exercises, which would substantially prejudice thier ability to submit competitive tenders and so could significantly harm their commercial business.
An exception under regulation 10(5)(b)(i) of the EIRs (substantial prejudice to course of justice) applies to some of the information you have requested because it is legal advice and disclosure would breach legal professional privilege and it may cause substantial prejudice to the course of justice.
These exceptions 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 exception. We have found that, on balance, the public interest lies in favour of upholding the exception. 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 tender for Scottish Government contracts, to ensure that we are always able to obtain the best value for public money.
An exception under regulation 11(2) of the EIRs (personal information) applies to some of the information requested because it is personal data of a third party 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 exception 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 exception.
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