You expressed you were not satisfied with our reply to your original Freedom of Information (FoI) request which was allocated reference number 202200307647. You submitted the following statement/request:
“I am writing to request an internal review of this decision.
I believe the exemptions applied either do not apply to the extent used in regards to the redactions of the documents or other withheld information, and if they do, I believe the public interest is demonstrably in favour of disclosure.
The Scottish Government's deals with GFG Alliance are of significant political and public interest, potentially causing embarrassment to the government and with a significant exposure of taxpayer money. The only way for meaningful scrutiny of the government's dealings with a company under investigation for its conduct is through disclosure of these documents in full, unredacted.”
I have concluded that the original decision should be confirmed, with modifications and that some additional information should be released, which is contained in the supporting document attached.
I concluded that most of the information should continue to be withheld under the exemptions that were applied in our initial response, for the following reasons.
I am content that section 33(1)(b) – commercial interest – applies to some of the information requested because if it were 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 in Lanarkshire 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. Scottish Government officials understand the need for transparency as part of being an open and responsible Government, however, in this case the potential impact on the local and wider economy by releasing commercially sensitive information outweighs this. Therefore, in considering the public interest test I have determined that the test does lie in favour of withholding the information.
I would also like to confirm that section 36(1) of FOISA (confidentiality in legal proceedings) applies to some of the information requested because it is legal advice and disclosure would breach legal professional privilege. Legal information provided in several of the documents was obtained by Scottish Government legal advisors for the purposes of informing Ministers. As the Scottish taxpayer has an interest in the Dalzell steel plant performing well and maintaining efficient operations, 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.
I have, however, determined that the application of section 36(1) of FOISA (confidentiality in legal proceedings) was incorrectly applied to some of the information withheld from release. As such, part of the information redacted under section 36(1) has been substituted with the exemption under section 30(c) of FOISA (prejudice to effective conduct of public affairs). This exemption applies to references to the source of legal advice. Revealing the source of the Scottish Government’s legal advice 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 matters related to the GFG Alliance. This would constitute substantial prejudice to the effective conduct of public affairs in terms of the exemption.
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.
I can confirm that section 25(1) was applied correctly when four documents were withheld in response to FOI 202200307647. Section 25 of (FOISA) exempts information from disclosure where the requester can reasonably obtain the information without asking for it under FOISA. The documents you referenced as: “Deloitte note of refinancing discussions with the GFG Alliance; Short term cash flow summary prepared by Deloitte; Lochaber update note from 04 June; Dalzell update note from 28 May” were released under FOI 202200273210.
Having reviewed those documents again, and after having consulted with the relevant Scottish Government policy officials, I can confirm that the exemptions previously used in response to that FOI continue to apply. Information redacted from these documents under section 30(c), section 33(1)(b) and section 36(1) continues to be withheld for the reasons set out above, including the public interest test. Information was also redacted from these documents under section 30(b)(i) (provision of free and frank advice), section 30(b)(ii) (free and frank exchange of views) and section 38(1)(b) (personal data) – were applied as, while Scottish Government officials understand the need for transparency as part of 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.
These exemptions are subject to the ‘public interest test’. Therefore, taking account of all the circumstances of this case, I have reconsidered if the public interest in disclosing the information outweighs the public interest in applying these exemptions. I have found that, on balance, the public interest lies in favour of upholding these exemptions. I 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 full and frank advice to Ministers and other officials, and views between officials and others can be exchanged as part of the process of exploring and refining the Government’s position. This private thinking space is essential to enable all options to be properly considered, based on the best available advice, so that good decisions can be taken. Premature 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. I have concluded therefore that, in respect of the information still withheld under FOISA at this time, disclosure would not be favourable.
Section 38(1)(b) is an absolute exemption and as such is not subject to the public interest test. I can confirm that the names of relevant Senior Civil Servants or equivalents have been released and the personal information withheld has been done in line with the FOISA guidelines.
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.
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Please quote the FOI reference
Central Enquiry Unit
Phone: 0300 244 4000
The Scottish Government
St Andrews House
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