Publication - FOI/EIR release

Information relating to GFG Alliance and Liberty Steel: FOI review

Published: 6 Aug 2021

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

Published:
6 Aug 2021
Information relating to GFG Alliance and Liberty Steel: FOI review
FOI reference: FOI/202100221928 review of 202100201796
Date received: 8 Jul 2021
Date responded: 5 Aug 2021
Information requested

You submitted the following initial request:

“Please provide all Government communication with Mr Sanjeev Gupta of GFG Alliance and Liberty Steel and/or with his company officers in relation to the outstanding £ 7 million loan that remains unpaid as of todays date that is securitised over Dalzell and Clydebridge plants.

I am seeking all communication since Greensill Capital announced liquidation on 8th March ’21 and withdrew funding for GFG/Liberty.

Furthermore please provide all communication from Fergus Ewing to any and all employees of Liberty Steel, GFG Alliance or any associated companies under the control of Mr Sanjeev Gupta.”

Upon receipt of your response to this request, you subsequently submitted a review request.

“I would like you to review the information in the above request and provide a more comprehensive and unredacted version of the provided documents."

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 decisionmaking around the original response.

I have considered this case again, and I have conducted a comprehensive review of the response, and the reasons behind withholding the requested information. I have concluded that the original decision should be confirmed with modifications. Due to the lapse in time since the information in question was created, I have reapplied the public interest test and reassessed damage that may be caused from release of the redacted passages. I can confirm that more information can now be released to you and as such I have attached new versions of the documents that fell within the scope of your request with more information made available.

Having reviewed this request and the information previously withheld, I have concluded that some of the information previously withheld under section 33(1)(b) (commercial prejudice) was incorrectly withheld and can now be disclosed due to the lapse in time since the initial release and this diminishing the effect of the commercial damage that would be caused. I would like to clarify, however, that the information withheld from release is not currently in the public domain. The commercially prejudicial information withheld from the release relates to the commercial and financial operations of the GFG Alliance and its associated companies. Having engaged with the relevant Scottish Government policy officials I am content that this information, if released, would be likely to significantly damage or weaken the company when attempting to carry out its operations both in Scotland and elsewhere and would also be unfairly advantageous to its competitors. The substantial prejudice to commercial interests that would be caused, coupled with the interests of the employees of the company being negatively affected as a result has led me to deduce that the initial case handler was correct in reaching the decision that the public interest did not favour disclosure. Similarly, as Scottish Ministers have an interest in the Lochaber smelter and hydroplant, damaging the company in question would in fact be detrimental to the tax payer as you have referenced.

Furthermore, I can confirm that the meeting note referenced in your review request was not included in your initial response as the policy area took the view that it did not fall into scope. As meeting notes were not referenced specifically in your initial request, the original case handler limited the scope of your request to communications such as emails, letters etc. As you clarified in you recent email that you also wanted meeting notes I requested that the policy area provided this note and any meeting notes within the scope of the request to you as part of your response. I have attached these separately as part of your review response. Similar to the letters provided to you previously, while our aim is to provide information whenever possible, in this instance we are unable to provide some of the information you have requested as exemptions under FOI(S)A apply. Further information on what exemptions apply and why can be found in the Annex.

ANNEX
LIST OF DOCUMENTS SUPPLIED


Supporting Document 1 – 27/04/21 to Sanjeev Gupta regarding Greensill
Supporting Document 2 – 05/05/21 to Sanjeev Gupta regarding Lochaber
Supporting Document 3 – note 31/03/21 meeting between Fergus Ewing and GFG
Supporting Document 4 - note 08/04/21 meeting between Fergus Ewing and GFG
Supporting Document 5 - note 15/04/21 meeting between Fergus Ewing and GFG

REASONS FOR NOT PROVIDING INFORMATION

Section 30(b)(ii) – Free and frank exchange of views for the purposes of deliberation

Exemptions under section 30(b)(ii) of FOISA (free and frank advice and exchange of views) apply 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 and exchange of views for the purposes of deliberation. The exemption recognises the need for Ministers to have a private space within which to seek advice and views from officials before reaching the settled public position. Disclosing the content of free and frank briefing material will substantially inhibit such briefing in the future, particularly because discussions on the issue are still ongoing and final decisions have not been taken, and these discussions relate to a sensitive or controversial issue.

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 exemptions. We recognise that there is a public interest in disclosing information as part of open, transparent and accountable government, and to inform public debate. However, there is a greater public interest in allowing a private space within which officials can provide free and frank advice and views to Ministers. Premature disclosure of this type of information could lead to a reduction in the comprehensiveness and frankness of such advice and views in the future, which would not be in the public interest.

Section 30(c) – substantial prejudice to the effective conduct of public af fairs
An exemption under section 30(c) of FOISA (prejudice to effective conduct of public affairs) applies to some of the information requested. It is essential for Ministers and Scottish Government officials to be able to meet and communicate and meet, of ten in confidence, with external stakeholders on a range of issues, in this case both the operations of the Lochaber smelter and the commercial dealings of the company in question. Disclosing the content of these communications and meetings, particularly without the consent of the stakeholder, is likely to undermine their trust in the Scottish Government and will substantially inhibit communications on this type of issue in the future. These stakeholders will be reluctant to participate in meetings and provide their views fully and frankly if they believe that their views are likely to be made public, particularly while these discussions are still ongoing and decisions have not yet been taken or these discussions relate to a sensitive or controversial issue issues in question that can affect the operations of a company and/or its employees. This would significantly harm the Government’s ability to carry out many aspects of its work, and could adversely affect its ability to gather all of the evidence it needs to make fully informed policies and decisions going forward and at cost to the taxpayer.

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 a public interest in disclosing information as part of open, transparent and accountable government, and to inform public debate. However, there is a greater public interest in allowing Ministers and officials a private space within which to communicate and meet with appropriate external stakeholders as part of the process of exploring and refining the Government’s policy position and potential actions on the Scottish Government Guarantee with GFG, until the Government as a whole can adopt a decision that is sound and likely to be effective. This private space is essential to enable all options to be properly considered, so that good policy decisions can be taken based on fully informed advice and evidence, such as that provided by representatives of GFG . Premature disclosure is likely to undermine the full and frank discussion of issues between the Scottish Government and these stakeholders, which in turn will undermine the quality of the policy decisions making process, which would not be in the public interest.

Section 33(1)(b) – Commercial Interest and the Economy
An exemption under section 33(1)(b) of FOISA applies to some of the information you have requested because it is likely to prejudice substantially the commercial interests of the business. This exemption applies because disclosure of this particular information would, or would be likely to, prejudice substantially the commercial interests of the company in question.

This exemption is subject to the ‘public interest test’. Therefore, taking into 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 to ensure full transparency. However, this is outweighed by the public interest as there is a risk to the companies commercial interests.

Section 38(1)(b) - Personal Information of a Third Party - Exemption Not Subject to the Public Interest Test
This exemption applies to some of the information requested because it is personal data of a third party, i.e. names and contact details, 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.

About FOI
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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