Publication - FOI/EIR release

Legal agreement with Ernst & Young: FOI review

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

Published:
29 Oct 2021
Legal agreement with Ernst & Young: FOI review
FOI reference: FOI/202100235635 Review of 202100227936
Date received: 2 Sep 2021
Date responded: 30 Sep 2021
Information requested

You expressed you were not satisfied with our reply to your original Freedom of Information request which was allocated reference number 202100227936. You submitted the following request:

A copy of the signed legal agreement between the Scottish Government and Ernst & Young regarding due diligence on the Lochaber Guarantee & Reimbursement Agreement. If not included within the agreement, please supply the contract value and the scope of the work (including any limitations).

Upon receipt of the response to this request you submitted the following:
The response to my FOI request isn't satisfactory so I am requesting that you carry out an internal review. The reasons for my request are:

1. The exemptions claimed do not apply.
2. The uses of exemptions has not been properly explained in accordance with FOISA.
3. The public interest test has not been properly carried out.
4. The public interest favours disclosure.

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 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 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 and the diminishing the effect of the commercial damage that would be caused.

I have also determined that the exemption was adequately explained in the initial response, however for completeness I will provide additional reasoning as to why the exemption applies. 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 commercial interests of both the Scottish Government and EY Ltd.

The information withheld relates to pricing of advisory services provided by EY to Scottish Ministers. Having engaged with officials from the relevant policy unit, I am satisfied that admission of the terms withheld, if made public, would be likely to substantially weaken the position of the Scottish Government when negotiating similar contractual terms when procuring services in the future and achieving best value for public money. Similarly, release would also hinder the commercial advisors in this regard and as such cause commercial damage to the company.

Scottish Ministers must be able to negotiate freely the terms of such contracts and release of this information would be advantageous to such advisers in the future in achieving higher rates of pricing at the taxpayer’s expense.

This exemption is subject to the public interest test. I recognise that there is a clear public interest in disclosure in order to provide openness and transparency, and to ensure that the Scottish Ministers are held to account for the expenditure of public money. However, I consider that there is a greater public interest protecting the commercial interests of companies who enter into contractual relationships with the Scottish Government and in ensuring that the Scottish Government can achieve value for money when procuring this type of service in future.

I therefore agree with the initial case handler that on balance, the public interest in maintaining the exemption outweighs that in favour of disclosing the information.

I have also determined that some of the information previously withheld under section 38(1)(b) (personal data) can now be disclosed. However I have concluded that a small amount of personal data, limited to the names of officials and third parties who do not hold senior positions and their contact details remains exempt from disclosure under section 38(1)(b) for the reasons set out in our initial response.

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