Correspondence regarding the nationalisation of ScotRail between 2016 to 2022: FOI release

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


Information requested

1. All meetings held by the Scottish Government on the nationalization of ScotRail between 2016 and 2022.

2. All correspondence conducted by the Scottish Government regarding the nationalization of ScotRail between 2016 and 2022.

3. All advice given to the Scottish Government regarding the nationalization of ScotRail between 2016 and 2022.

I then sought clarification from you on 11 January and you confirmed the following on 11 January 2022:-

1. I can confirm that this is related to work under way to mobilise a wholly owned company of the Scottish Government to provide ScotRail services within the public sector under Scottish Government control.

2. I would like to narrow down my request to:

1) To correspondence between Scottish Government Ministers and staff (from 2016 to date).
2) Meeting minutes between Scottish Government Ministers and Transport Scotland, as well as ScotRail (from 2016 to date).

Response

Please accept my apologies for the delay in replying.

I can confirm the following in relation to your request for information:-

All documents relating to your request (1) above are contained in Appendix A.

All documents relating to your request (2) above are contained in Appendix B.

You will see that some of the information has been redacted in line with the following FOISA exemptions:-

Section 27 (1) Future publication: 12 weeks

An exemption under section 27 (1) of FOISA (Future publication : 12 weeks) applies to some of the information requested. This exemption has been applied to the Policy Compendium document as it is Transport Scotland’s intention to publish this document alongside ScotRail Trains Ltd Business Plan as part of the transition on 1 April 2022 of ScotRail to ScotRail Trains Ltd.

Section 30(b)(i) - Substantial inhibition to free and frank exchange of advice

An exemption under section 30(b)(i) of FOISA (free and frank provision of advice) applies to some of the information requested. This exemption applies because disclosure would, or would be likely to, inhibit substantially the free and frank exchange of advice. This exemption recognises the need for officials to have a private space within which to provide free and frank advice to Ministers.

Disclosing the content of free and frank exchange of advice regarding the move to would inhibit the exchange of advice in future between officials and Ministers in relation to areas of future policy making.

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 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 exchange full and frank views, as part of the process of exploring and refining the Government’s decision making process. This private thinking space is essential to enable all options to be properly considered, based on the best available advice, so that good policy decisions can be taken. Disclosure is likely to undermine the full and frank discussion of issues between Ministers and officials, which in turn will undermine the quality of the decision making process, which would not be in the public interest.

Section 33(1)(b) - Substantial prejudice to commercial interests

An exemption under section 33(1)(b) of FOISA (Substantial prejudice to commercial interests) applies to some of the information requested. This exemption applies because disclosure of this particular information would, or would be likely to, prejudice substantially the finalisation of Scottish Rail Holdings business case.

Disclosing this information would be likely to result in data being presented that is still subject to change as it is currently going through internal checks and finalisation. 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 and transparent government, and to help account for the expenditure of public money. However, there is a greater public interest in protecting the commercial interests of the development of the Scottish Rail Holdings business case.

Section 38 (1) (b) – Third party data

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, i.e. names and contact details of individuals and companies, 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. For ease, the information that has been redacted in line with Section 27 (1), Section 30 (b)(i) and Section 33(1)(b) has been clearly marked as follows: -

  • Section 27 (1)
  • Section 30(b)(i)
  • Section 33(1)(b)

The remaining information that has been redacted is that which falls into the exemption of section 38 (1) (b) – third party data.

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.

FOI - 202200270246 - Information Released - Appendix A and B

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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