Correspondence between transport ministers regarding the awarding of contracts by ScotRail: FOI release

Information requested

Correspondence since 1 July 2025 between transport ministers (or their private offices) and other parties regarding the awarding of contracts by ScotRail.

Response

Please find attached to this letter Annex A, which contains the available information you have requested. While we aim to provide the information wherever possible, some of the information in the attached Annex has been redacted in line with the following FOISA exemptions: 

Section 30(b)(i) - the free and frank provision of advice

An exemption under section 30(b)(i) of FOISA applies to some of the information requested.

Whilst we aim to provide information whenever possible, an exemption under section 30(b)(i) of FOISA applies to part of your request. This exemption applies because disclosure would, or would be likely to, inhibit substantially the free and frank provision of advice in the future.

This exemption recognises the need for officials to have a private space within which to provide free and frank advice to Ministers before the Scottish Government reaches a settled public view. Disclosing the content of free and frank advice would inhibit free and frank provision of advice between the Ministers and their officials in the future.

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 maintaining an environment in which advice can be exchanged without prejudice in the future, enabling Ministers to make well informed decisions having considered all available advice and information.

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

An exemption under section 33(1)(b) of FOISA applies to some of the information requested.

This exemption applies because disclosure of information related to the cost of awarding contract to Teleperformance by ScotRail would, or would be likely to, prejudice substantially the commercial interests of ScotRail.

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 ScotRail, to ensure that it can obtain the best value for
public money in current and any future contract procurement exercises.

Section 38(1)(b) – Personal data relating to third party

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 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 information that has been redacted has been clearly marked in the Annex with the relevant exemption i.e. Section 30 (b)(i).

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

Information related to the procurement of the rolling stock replacement

Some of the information requested by you and identified during the process of preparing this response relates to the procurement of ScotRail’s replacement rolling stock.

As this information is ‘environmental information’ for the purposes of the Environmental Information (Scotland) Regulations 2004 (EIRs), we are required to deal with your request under those Regulations. We are applying the exception at section 39(2) of the Freedom of Information (Scotland) Act 2002 (FOISA), so that we do not also have to deal with your request under FOISA.

This exception 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 exception. We have found that, on balance, the public interest lies in favour of upholding the exception, because there is no public interest in dealing with the same request under two different regimes. This is essentially a technical point and has no material effect on the outcome of your request.

We have identified 2 submissions which, while in the majority well out of scope of your request, do contain a mention of awarding contacts by ScotRail. As this information forms internal communications between officials and Cabinet Secretary for Transport in relation to the ongoing procurement process, we are not able to disclose this information at this time.

An exemption under Regulation 10(4)(e) EIR – Internal communications applies to this information.

This exception recognises the need for officials and Ministers to have a private space within which they can communicate openly. This exception applies because disclosure would, or would be likely to, inhibit substantially the openness and frankness of exchanges of communication between officials and Ministers in the future.

This exception 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 exception. We have found that, on balance, the public interest lies in favour of upholding the exception.

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 and Ministers can exchange information freely. This private space is essential to enable all options to be properly considered. Disclosure on the other hand, is likely to undermine the full and frank communication in future, which in turn, would undermine the quality of the decision making process, which would not be in the public interest.

About FOI

The Scottish Government is committed to publishing all information released in response to Freedom of Information requests. View all FOI responses at https://www.gov.scot/foi-responses.

FOI 202600501903 - Information released - Annex A

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