Publication - FOI/EIR release

Former Finance Secretary’s representation to the Scottish Parliament Finance Committee: FOI release

Published: 17 Mar 2021

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

Published:
17 Mar 2021
Former Finance Secretary’s representation to the Scottish Parliament Finance Committee: FOI release
FOI reference: FOI/202000106220
Date received: 31 Oct 2020
Date responded: 8 Dec 2020
Information requested

Please provide all information held, including legal opinion, about finance secretary Derek Mackay's representation to the Scottish Government's finance committee in November, last year where he talked about a "proposed contingent liability" which was passed by MSPs.

This should include, but is not limited to (A) all internal memorandums, emails and other electronic communications such as What's App.

Response

I enclose copies of the information you requested in relation to Derek Mackay’s representation to the Scottish Parliament Finance Committee that was held last November.

Please be advised that we are unable to provide some information you requested because exemptions under sections 33(1)(b) and 36(1) of FOISA apply to that information. The reasons why the exemptions apply are explained in the Annex below.

ANNEX
REASONS FOR NOT PROVIDING INFORMATION

The following exemptions apply:

  • An exemption under section 33(1)(b) of FOISA applies to some of the information requested because disclosure of the information would, or would be likely to, prejudice substantially the commercial interests of any person. “Person” includes a public authority, company and partnership. 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 exemption. We have found that, on balance, at this time the public interest lies in favour of upholding the exemptions. While we recognise that there is a general public interest in how public money is spent, there is a greater public interest in protecting the integrity of the procurement process and the commercial interests of tenderers, so that they are not deterred from bidding for similar contracts in the future.
  • An exemption under section 36(1) of FOISA (Confidentiality of Communications) applies to some of the information requested because it is legal advice and disclosure would breach legal professional privilege. 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 some public interest in release as part of open and transparent government, and to inform public debate. However, this is outweighed by the strong public interest in maintaining the right to confidentiality of communications between legal advisers and clients, to ensure that Ministers and officials are able to receive legal advice in confidence, like any other public or private organisation.

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.

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