Transport Scotland emails regarding publication date of Audit Scotland report: FOI Review

Information requested

"This is a request under the Freedom of Information (Scotland) Act 2002. It should be treated as a single request and not aggregated with others. On 11 May 2022, the Scottish Government publised a five-page PDF document on its website titled Ferguson Marine - response to submission to Ministers requesting approval of CMAL contract award - 9 October 2015.

https://www.gov.scot/binaries/content/documents/govscot/publications/transparency-data/2019/12/ferguson-marine-key-documents-2015/documents/ferguson-marine---response-to-submission-to-ministers-requesting-approval-of-cmal-contract-award---9-october-2015/ferguson-marine---response-to-submission-to-ministers-requesting-approval-of-cmal-contract-award---9-october-2015/govscot%3Adocument/Ferguson%2BMarine%2B-%2Bresponse%2Bto%2Bsubmission%2Bto%2BMinisters%2Brequesting%2Bapproval%2Bof%2BCMAL%2Bcontract%2Baward%2B-%2B9%2BOctober%2B2015.pdf

This contained six emails dated 09 October 2015 which had not previously been released, sometimes referred to as 'missing'. Please supply all items of information generated by Transport Scotland in relation to these six emails since 23 March 2022, the publication date of the Audit Scotland report 'New vessels for the Clyde and Hebrides'.

This should include, but not be limited to, all information and correspondence generated as part of the search for these six emails, all information and correspondence generated in response to their discovery, all information prepared for ministers in relation to the search and discovery of these emails, including notes for transport minister Jenny Gilruth in relation to her speaking in the Scottish Parliament chamber on the issue on 11 May 2022, and all 'lines to take', or similar, on the emails prepared for members of the Transport Scotland media team in response to potential media questions about them. In order to fulfil this request as cheaply and efficiently as possible, it is suggested that copies of original files are released in PDF format. I understand there may be a charge for this information."

Response

I have now completed my review of our failure to respond to your request under the Freedom of Information (Scotland) Act 2002 (FOISA) for;

"This is a request under the Freedom of Information (Scotland) Act 2002. It should be treated as a single request and not aggregated with others. On 11 May 2022, the Scottish Government publised a five-page PDF document on its website titled Ferguson Marine - response to submission to Ministers requesting approval of CMAL contract award - 9 October 2015.

https://www.gov.scot/binaries/content/documents/govscot/publications/transparency-data/2019/12/ferguson-marine-key-documents-2015/documents/ferguson-marine---response-to-submission-to-ministers-requesting-approval-of-cmal-contract-award---9-october-2015/ferguson-marine---response-to-submission-to-ministers-requesting-approval-of-cmal-contract-award---9-october-2015/govscot%3Adocument/Ferguson%2BMarine%2B-%2Bresponse%2Bto%2Bsubmission%2Bto%2BMinisters%2Brequesting%2Bapproval%2Bof%2BCMAL%2Bcontract%2Baward%2B-%2B9%2BOctober%2B2015.pdf

This contained six emails dated 09 October 2015 which had not previously been released, sometimes referred to as 'missing'. Please supply all items of information generated by Transport Scotland in relation to these six emails since 23 March 2022, the publication date of the Audit Scotland report 'New vessels for the Clyde and Hebrides'.

This should include, but not be limited to, all information and correspondence generated as part of the search for these six emails, all information and correspondence generated in response to their discovery, all information prepared for ministers in relation to the search and discovery of these emails, including notes for transport minister Jenny Gilruth in relation to her speaking in the Scottish Parliament chamber on the issue on 11 May 2022, and all 'lines to take', or similar, on the emails prepared for members of the Transport Scotland media team in response to potential media questions about them. In order to fulfil this request as cheaply and efficiently as possible, it is suggested that copies of original files are released in PDF format. I understand there may be a charge for this information."

In accordance with section 21(4) of FOISA, I have also reached a decision on your request. The time taken to respond to you was regrettable and was due to the unprecedented number of requests received at the same time.

I can now provide our response to your original request which is included within an annex and has been sent under separate cover due to the size of the document.

An exemption under section 38(1)(b) of the FOISA (personal information of a third party) 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 exception.

An exemption under section 36(1) of FOISA (confidentiality in communications) applies to some of the information requested because it is legal advice and disclosure would breach legal professional privilege. 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. Once again, we recognise that there is some public interest in release as part of open and transparent government, and to inform public debate. However, this is outweighed by the strong public interest in maintaining the right to confidentiality of communications between legal advisers and clients, to ensure that Ministers and officials are able to receive legal advice in confidence, like any other public or private organisation.

An exemption under section 30(c) of the FOISA (the effective conduct of public affairs) applies to some of the information requested because it reveals the source of legal advice. This exemption applies because revealing the source of the Scottish Government’s legal advice on this matter, would be likely to lead to conclusions being drawn from the fact that any particular lawyer has, or has not, provided advice, which in turn would be likely to impair the Government’s ability to take forward its work on the matter. This would constitute substantial prejudice to the effective conduct of public affairs in terms of the exemption. 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 enabling the Scottish Government to determine how and from whom it receives legal advice, without facing external pressure or concerns that particular conclusions may be drawn from the fact that any particular lawyer has or has not provided legal advice on a particular matter. Releasing information about the source of legal advice would also be a breach of the long-standing Law Officer Convention (reflected in the Scottish Ministerial Code) which prevents the Scottish Government from revealing whether Law Officers either have or have not provided legal advice on any matter. There is no public interest in breaching that Convention by divulging which lawyers provided advice on any issue.

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 202200312123 - Information Released - Annex

File type

35 page PDF

File size

342.9 kB