Vessel 802 Stage 10 payment: EIR release

Information requested

Regarding the Stage 10 payment for vessel 802 made to FMEL on 29/05/2017, according to the revised payment schedule of 12/05/17:

1. Please set out what evidence was provided by FMEL as proof that all elements of the tenth milestone event had been achieved to the required standard? Please provide this.
2. Please set out what checks were carried out to assess FMEL’s evidence of milestone completion?
3. Please identify who recommended and approved that the stage 10 payment should be made?
4. Please provide all briefings, correspondence, emails, letters, notes of meetings and telephone conversations, between 13/05/2017 and 29/05/2017 inclusive concerning the scheduled payment for completing the tenth milestone.

As the information you have requested 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 exemption 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 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, 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.

Response

1. Some of the information you have requested is available from Audit Scotland’s New vessels for the Clyde and Hebrides: Arrangements to deliver vessels 801 and 802 report.

Under regulation 6(1)(b) of the EIRs, we do not have to give you information which is already publicly available and easily accessible to you in another form or format. If, however, you do not have internet access to obtain this information from the website(s) listed, then please contact me again and I will send you a paper copy.

While our aim is to provide information whenever possible, in this instance the Scottish Government does not hold the information you have requested. Therefore we are refusing your request under the exception at regulation 10(4)(a) of the EIRs. The reasons why that exception applies are explained in the Annex B to this letter. However, you may wish to contact Caledonian Maritime Assets Limited (CMAL) directly at FOI@cmassets.co.uk who may be able to help you.

2. Some of the information you have requested is available from Audit Scotland’s New vessels for the Clyde and Hebrides: Arrangements to deliver vessels 801 and 802 report.

Under regulation 6(1)(b) of the EIRs, we do not have to give you information which is already publicly available and easily accessible to you in another form or format. If, however, you do not  have internet access to obtain this information from the website(s) listed, then please contact me again and I will send you a paper copy.

While our aim is to provide information whenever possible, in this instance the Scottish Government does not hold the information you have requested. Therefore we are refusing your request under the exception at regulation 10(4)(a) of the EIRs. The reasons why that exception applies are explained in the Annex B to this letter. However, you may wish to contact Caledonian Maritime Assets Limited (CMAL) directly at FOI@cmassets.co.uk who may be able to help you.

3. While our aim is to provide information whenever possible, in this instance the Scottish Government does not hold the information you have requested. Therefore we are refusing your request under the exception at regulation 10(4)(a) of the EIRs. The reasons why that exception applies are explained in the Annex B to this letter.However, you may wish to contact Caledonian Maritime Assets Limited (CMAL) directly at  FOI@cmassets.co.uk who may be able to help you.

4. Information in scope is attached in Annex A.

ANNEX B
REASONS FOR NOT PROVIDING INFORMATION
Exceptions under regulations 10(4)(a) (information not held), 10(5) (e) (confidentiality of commercial or industrial information) and 11(2) (personal information of a third party) of the EIRs apply to some of the information you have requested.

Regulation 10(4)(a) - The Scottish Government does not have the information requested relating to milestone 10 because CMAL were the procuring authority for the contract to build Hull 801 and Hull 802 and as such all evidence from FMEL, to release milestone payments, was provided to CMAL not the Scottish Government. Under the terms of the exception at regulation 10(4)(a) of the EIRs (information not held), the Scottish Government is not required to provide information which it does not have.

As mentioned in the Audit Scotland report FMEL and CMAL confirmed to Audit Scotland that stringent checks were in place prior to CMAL signing milestone certificates and making milestone payments to FMEL. Regulation 10(5) (e) – the confidentiality of commercial or industrial information where such confidentiality is provided for by law to protect a legitimate economic interest.

An exception under regulation 10(5) (e) (confidentiality of commercial or industrial information) of the EIRs applies to some of the information you have requested. This exception applies because disclosure of this particular information would, or would likely to, prejudice substantially the confidentiality of commercial information provided by Caledonian Maritime Assets Limited (CMAL) and thus cause substantial harm to their commercial interests and to the unsuccessful bidders involved in the NEWBUILDCON procurement process.

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 that there is a public
interest in disclosing information as part of open and transparent and accountable government, and to inform public debate. However, there is a greater public interest in protecting the commercial interests of companies when substantial harm can be made to their commercial interests.

Regulation 11(2) – To the extent that environmental information requested includes personal data of which the applicant is not the data subject and in relation to which either the first or second condition set out in paragraphs (3) and (4) is satisfied, a Scottish public authority shall not make the personal data available.

An exception under regulation 11(2) of the EISRs (personal information of a third party) applies to some of the information requested because it is personal data of a third party 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 exception 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 exception.

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.

802 Milestone 10- Redacted

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