Burntisland Fabrications (BiFab) submitted business case: FOI review

Information requested

A copy of the BiFab business case used as the basis for the Scottish Government's £37.4 million investment in BiFab.

Response

I have been asked to look at your request afresh, to decide whether the original response should be confirmed, with or without modifications, as appropriate, or that a fresh decision should be substituted. I can confirm that I was not involved in the handling or decision-making around the original response.

I have reviewed the response to your original request and examined the FOISA guidance issued by the Scottish Information Commissioner. I have concluded that the original decision should be confirmed with modifications as noted below.

In conducting my review, I have established that some of the information you requested which was previously withheld under section 33(1)(b) and section 36(1) is available on the Scottish Government and What Do They Know websites. I have therefore determined that an exemption under section 36(1) of FOISA would not apply in these cases and an exemption under section 33(1)(b) would only continue to apply to a small amount of commercially sensitive information which was redacted from the information previously published for the reasons set out in our initial response and in response to your
additional points at the end of this letter. I have set out the relevant publically available documents below along with a link to where you can access the information requested:

• Ministerial Submissions dated 18 March 2018 and 10 April 2018 titled FOI/18/02772 – Ministerial Submission - Information held regarding restructuring loan facility to Burntisland Fabrications Limited (Bifab): FOI appeal - gov.scot (www.gov.scot)
• Letter from Keith Brown to Finance Committee, 17 April 2018 – redacted version released by Scottish Government previously (see page 48) - FOI202100178361+-+Information+released+1.pdf (www.gov.scot)
• Letter from Keith Brown to Finance Committee, 17 April 2018 – redacted version released by the Scottish Parliament - 2018 616543 Letter 17 April 2018 Redacted.pdf (whatdotheyknow.com)

Under section 25(1) of FOISA, we do not have to give you information which is already reasonably accessible to you.

I have also enclosed a modified version of the Burntisland Fabrications Business Plan. Some additional information is now being released as that information is considered to be either already in the public domain or generic in nature and therefore not covered by any FOISA exemptions.I am however satisfied that an exemption under section 36(2) continues to apply to some redacted information within this document for the reasons set out below.

An exemption under section 36(2) of FOISA (actionable breach of confidence) applies to some the information you have requested. It is noted that DF Barnes submitted the information to the Scottish Government knowing that public disclosure of the information could occur and that the Scottish Government is solely responsible for determining if information should be disclosed under FOISA. However, we believe that the release of some information within the Business Plan by Scottish Government would constitute an actionable breach of confidence.

In addition, I have determined that an exemption under section 38(1)(b) of FOISA (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 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. This was not mentioned in our original response and I do apologise for this omission.

I have also considered some of the specific points you raised in your email requesting for a review and my response is noted below. An exemption under section 33(1) (b) of FOISA applies to some of the information you requested. I recognise that BiFab is now in administration with its key assets sold to a third party. However, the exemption applies to information you requested which shows how the Scottish Government does business and would prejudice its future negotiations with any other distressed, strategically important companies. There is clear public interest in BiFab but I consider that to be outweighed by the need for the Scottish Government to be able to enter future negotiations with companies without those companies already having detailed knowledge of our negotiating approach.

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FOI202100194635 - Information released

File type

41 page PDF

File size

3.5 MB