- 13 May 2021
Date received: 17 Mar 2021
Date responded: 15 Apr 2021
A copy of the BiFab business case used as the basis for the Scottish Government's £37.4 million investment in BiFab.
Attached is copies of the information requested relating to the BiFab business case used as a basis for the Scottish Government’s intervention.
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 exemptions under sections 33(1)(b), 36(1) and 36(2) of FOISA apply to that information. The reasons why the exemptions apply are explained in the 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.
- An exemption under section 36(2) of FOISA (actionable breach of confidence) applies to some the information you have requested. This exemption applies because the information was obtained from DF Barnes and disclosure would constitute an actionable breach of confidence. This is because the information is confidential, was provided in circumstances which imposed an obligation on the Scottish Government to maintain that confidentiality, and unauthorised disclosure would be to the detriment of the DF Barnes who provided the information. 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