Independent valuation of the Scottish Government's securities: FOI review

Information requested

You expressed you were not satisfied with our reply to your original Freedom of Information (FoI) request which was allocated reference number 20220031298479: 

“1) The Scottish Government in media statements has stated that an independent valuation of the Scottish Government's securities relating to the Lochaber Guarantee valued them at more than the outstanding amount of the guarantee. Please provide this valuation figure. 

2) Please also provide the independent valuation itself, who undertook the valuation ,at what date, and for how much taxpayer money.” 

Response

“I am writing to you to request an internal review of this decision. 

I believe the information should be disclosed unredacted, predominantly due to the public interest in the information being made public for accountability and transparency purposes and principles. However, the publication of the Project Golf paper, plus the SIC decision notice around the value of the guarantee demonstrate that the information both can be disclosed in full and that the public interest test overwhelmingly lies in favour of disclosure.” 

I have been asked to look at your request afresh, to decide whether the original response should be confirmed, with or without modifications, as appropriate, or that a fresh decision should be substituted. I can confirm that I was not involved in the handling or decision-making around the original response. I have considered this case again, and I have conducted a comprehensive review of the response, and the reasons behind withholding the requested information. I have concluded that the original decision should be upheld with modifications and as such some additional information contained within the documents held in scope has now been released. 

I have determined that the application of the exemption at section 33(1)(b) (commercial interests) to some information in the original response was appropriate in most cases, and in the public interest. I am satisfied that if this information were released it would negatively impact the business and potentially damage negotiations, day-to-day operations and other activity. Whilst I recognise that there would be some public interest in release of the information in terms of providing greater openness, I consider that this is outweighed by the public interest in ensuring that private sector partners can share commercially sensitive information with Government with confidence that such information will be handled with due sensitivity. 

However, I have decided that a small amount of the information previously withheld under section 33(1)(b) ought in fact to have been provided. That information is included in the revised versions of the release documents attached with this letter. 

I would also like to confirm that section 36(1) of FOISA (confidentiality in legal proceedings) applies to some the information requested because it is legal advice and disclosure would breach legal professional privilege. Legal information provided in several of these documents was obtained by legal advisors for the purposes of informing Ministers. Particularly as the Scottish taxpayer has an interest in the GFG businesses performing and operating well, 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, once again depriving the taxpayer of best value for money and not in the interest of the public. 

I have 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, I would like to advise that the 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 legal advice relating to the GFG and Scottish Government Guarantee Reimbursement Agreement, 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. 

I have also considered the application of section 38(1)(b) (personal information), and have found this to have been applied appropriately to the personal information of individuals named within the information. Section 38(1)(b) is an absolute exemption and as such is not subject the public interest test. I can confirm that the personal information withheld has been done in line with the FOISA guidelines, to ensure compliance with data protection principles. 

I have also established that in the documents you were provided in the first request, an additional exemption was applied that you were not advised of. I would like to make you aware now that section 36(2) – actionable breach of confidence. An exemption under section 36(2) of FOISA (actionable breach of confidence) applies to some of the information requested because it was obtained from an external organisation and disclosure would constitute an actionable breach of confidence. This is because the information is confidential, was provided in circumstances which imposed an obligation on the Scottish Government to maintain that confidentiality, and unauthorised disclosure would be to the detriment of that organisation who provided the information. 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.

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.