Information

Lochaber Smelter Guarantee Ministerial Submission: FOI Review

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


Information requested

You expressed you were not satisfied with our reply to your original Freedom of Information (FoI) request which was allocated reference number 202100256434:

“1. Please supply a copy of the submission(s), on the subject of the Lochaber Smelter Guarantee(s), provided to ministers for approval.

2. Please also provide a copy of the (i) Ministerial sign off and (ii) Accountable Officer sign off, for the £586 million Lochaber Smelter guarantee.”

Upon receipt of your response you submitted the following request for review:

“I am requesting that you (specifically you) carry out an internal review of the response to my FOI request. The response is not satisfactory for reasons I will set out below. Due to the complexity of issues contained in the request the review must not be delegated. Previous reviews have been carried out by, what appear to be, junior members of staff on what are complex issues.

The reasons for my dissatisfaction are:

  • Some information redacted is in the public domain.
  • The FOISA exemptions claimed do not apply to the information redacted.
  • The entities, nature and extent of prejudice lacks clarity and precision.
  • The quality of explanations for withholding information are poor.
  • The public interest test has not been properly carried out.
  • The public interest favours disclosure.
  • The response doesn't take account of SIC Decision Note 144/2021.”

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 upheld with modifications and as such some additional information contained in the documents attached has been released.

Once again, Scottish Government officials have determined that the application of the exemptions are valid and apply to the information that has been withheld. However, in my review I have identified further information that can be released without causing damage to the stakeholders involved and in within the public interest. I have also concluded that the information should correctly be withheld under section 33(1)(b) – commercial interest – because if it was released it would negatively impact the business and potentially damage negotiations, day-to-day operations and other activity. Given the importance of the business to the economy of the West Highlands and beyond, along with the interests of the employees who work there, I have determined that the public interest test lies in favour of withholding the information. This rationale is similar with the application of section 30(b)(ii) – free and frank exchange of view – as, while Scottish Government officials understand the need for transparency as part being an open and responsible Government, Ministers and officials require a necessary and private space to make decisions. This becomes even more important when events with external parties are still ongoing and in an effort to maintain a well-functioning working relationship with companies and external advisors. It is not in the public interest to release information that would prejudice this and deprive the taxpayer of best value for money.

I have concluded at review that section 36(1) of FOISA (confidentiality in legal proceedings) applies to some the information requested because it is legal advice and disclosure would breach legal professional privilege. Legal information provided in the submission was obtained by Scottish Government legal advisors for the purposes of informing Ministers on the decision on the Lochaber Guarantee and its approval. Particularly as the Scottish taxpayer has an interest in the Lochaber smelter, as does the Scottish Government, disclosing legal advice while potential legal scenarios are developing would not be in the public interest. FOISA also recognises the need for Ministers and officials to have a private space within which to seek advice and discuss options before reaching a settled public view. Disclosing the content of such advice/discussions will substantially inhibit the free and frank provision of advice and/or exchange of views in the future, particularly if those discussions relate to sensitive issues. This would constitute substantial prejudice to the effective conduct of public affairs in terms of the exemption.

I would like to confirm that the decision by the initial case handler does take into account the Scottish Information Commissioner’s Decision Notice 144/2021.

I have also confirmed with the relevant Scottish Government policy area that there is no further information contained in the documentation being withheld on this occasion that is already in the public domain.

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

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