Ministerial Briefing - Dalzell Steel on 14/12/2022: FOI release

Information requested

• Any briefing notes prepared for Minister Ivan McKee ahead of answering Willie Rennie MSPs question on Dalzell Steel on 14/12/22.
• A copy of any correspondence between ministers, officials and civil servants relating to the preparation of materials to support the minister in answering this question.

Response

In response to your request, 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 under sections 30(b)(i), 30(c), 33(1)(b), 36(1) and 38(1)(b), of FOISA applies to this information. The reasons why these exemptions apply are explained in the Annex to this letter.

Some of these exemptions are 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 exemptions. Further details of the public interest tests applied to each of these exemptions can be found in the annex of this letter.

Annex

REASONS FOR NOT PROVIDING INFORMATION

Section 30(b)(i) – Free and Frank Exchange of Advice.
An exemptions under section 30(b)(i) of FOISA applies to some of the information requested. This exemption applies because disclosure would, or would be likely to, inhibit substantially the free and frank provision of advice between officials and Ministers. This exemption recognises the need for Ministers and officials to have a private space to discuss the Scottish Government position on a given topic in more detail and we therefore 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 greater public interest in enabling free and frank exchanges between officials and Ministers, especially in this case, which relates to ongoing commercial operations at a privately run site in Scotland.

Section 30(c) – Substantial Prejudice to Effective Conduct of Public Affairs
An exemption under section 30(c) of FOISA applies to some of the information requested as it relates to ongoing dialogue between the Scottish Government and the UK Government about a matter which ultimately the European Commission would be responsible for. 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. However, there is a greater public interest in communicating with the UK Government in a private space following any dialogue the UK Government may have with the European Union Commission.

Section 33(1)(b) – Commercial Interest and the Economy
An exemption under section 33(1)(b) of FOISA also applies to some of the information you have requested because it relates to commercial information that may prejudice the company or the Scottish Government. We have found that, on balance, the public interest lies in favour of upholding the exemption however 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 protecting the commercial interests of companies which enter into Scottish Government contracts, to ensure that we are always able to obtain the best value for public money.

Section 36(1) – Legal Advice
An exemption under 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. 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.

Section 38(1)(b) – Personal data
An exemption under section 38(1)(b) applies to some of the information requested because it is personal data of a third party, i.e. names and contact details, 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.

About FOI

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202200335536 - Supporting Documents - Final

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