CalMac Ferries Ltd offshore crewing or payroll arrangements between the dates of 1 February 2024 and 31 July 2025: FOI release

Information requested

Information relating to the use by CalMac Ferries Ltd of offshore crewing or payroll arrangements, including Caledonian MacBrayne Crewing (Guernsey), between the dates of 1 February 2024 and 31 July 2025.

Response

A copy of the information you have requested is provided in Annex B to I. Due to the file size, a copy of the information you have requested is also provided in Annex A under separate email cover, with reference 202600499828.

​​​​​​​While our aim is to provide information whenever possible, in this instance we are unable to provide some of the information you have requested because exemptions apply under section 30(b)(ii) (free and frank exchange of views), 30(c) (substantial prejudice to the effective conduct of public affairs), 36(1) (confidentiality in legal proceedings) and 38(1)(b) (personal information) of FOISA.

​​​​​​​An exemption under section 30(b)(ii) of FOISA (free and frank exchange of views) 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 views and advice. The exemption recognise the need for officials to have a private space within which to provide free and frank advice to both other government officials and Ministers when discussing CalMac’s offshore crewing arrangement, both now and in the future.

​​​​​​​The above exemption is subject to the ‘public interest test’. Therefore, taking account of all of the circumstances of this case, we have considered if the public interest in disclosing the information outweighs the public interest in applying the exemptions. We have found that, on balance, the public interest lies in favour of upholding the exemptions. 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 allowing a private space within which officials can provide full and frank exchange of views between themselves and Ministers, to enable all options to be properly considered, based on the best available advice, so that good decisions can be taken.

​​​​​​​An exemption under section 30(c) of FOISA (substantial prejudice to the effective conduct of public affairs) applies to some of the information requested. This exemption applies because revealing the source of the Scottish Government’s legal advice relating to CalMac’s offshore crewing arrangement 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 this matter. This would constitute substantial prejudice to the effective conduct of public affairs in terms of the exemption.

​​​​​​​The above 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.

​​​​​​​An exemption under section 36(1) of FOISA (confidentiality in legal proceedings) also 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. 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 38(1)(b) of FOISA (personal information) applies to some of the information you have requested because it is personal data of a third party (i.e. names and contact details of individuals), 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. The Scottish Government has a general approach of disclosing information about senior members of staff, releasing details of those within senior civil service roles and officials with relatively senior roles that are public facing, but withholding those details for more junior members of staff.​​​​​​​

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FOI 202600499828 - Information Released - Annex

File type

PDF

File size

1.4 MB