Publication - FOI/EIR release

Non-disclosure agreements signed by former Ferguson Marine workers: FOI release

Published: 8 December 2023
Topic: Public sector
FOI reference: 202200298010
Date received: 1 May 2022
Date responded: 8 June 2022

Information request and response under the Freedom of Information (Scotland) Act 2002.

Information requested

All correspondence between Scottish Government communications staff, government ministers and special advisers in February 2020 on media enquiries regarding non-disclosure agreements signed by former workers at the Ferguson Marine shipyard.

Response

I enclose four documents within scope of 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 section 30(b)(i) (free and frank provision of advice and free and frank exchange of views) and section 38(1)(b) (personal data of a third party) of the Freedom of Information (Scotland) Act 2002 apply to that information.

The reasons why the exemptions apply are explained in the Annex to this letter.

REASONS FOR NOT PROVIDING INFORMATION

An exemption applies
An exemption under section 38(1)(b) (personal data of a third party) of FOISA applies to some of the information you have requested. This exemption applies to the names of third parties referenced throughout the documents within scope of the request. The Scottish Government has a policy of not disclosing the names of officials who are not Senior Civil Servants.

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.

An exemption applies, subject to the public interest test
Exemptions under sections 30(b)(i) and 30(b)(ii) of FOISA (free and frank advice and exchange of views) apply to some of the information requested. These exemptions apply because disclosure would, or would be likely to, inhibit substantially the free and frank provision of advice and exchange of views for the purposes of deliberation. The exemptions recognise the need for Ministers to have a private space within which to seek advice and views from officials before reaching the settled public position which will be given in whatever final Parliamentary answer Ministers then give.

Disclosing the content of free and frank briefing material provided to the First Minister for First Minister's Questions would substantially inhibit such briefing in the future, particularly because the provision of advice and discussions on issues are still ongoing and final decisions may have not been taken, and these discussions relate to often fluid, evolving and sensitive issues such as those raised at First Minister's Questions.

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. We have found that, on balance, the public interest lies in favour of upholding the exemption for the advice.

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 free and frank advice and views to Ministers in briefing for First Minister's Questions. It is clearly in the public interest that Ministers can properly answer Parliamentary questions, provide sound information to Parliament (to which they are accountable), and robustly defend the Government’s policies and decisions. They need full and candid advice from officials to enable them to do so. Premature disclosure of this type of information could lead to a reduction in the comprehensiveness and frankness of such advice and views in the future, 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 http://www.gov.scot/foi-responses.