Publication - FOI/EIR release

Correspondence for auditor of GFG Lochaber smelter and Dalzell steelworks: FOI review

Published: 5 February 2024
Directorate: Economic Development Directorate
Topic: Public sector
FOI reference: FOI/202200332486 Review of 202200328214
Date received: 16 September 2022
Date responded: 30 December 2022

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

Information requested

You asked for a review of our reply to your original Freedom of Information (FoI) request which was allocated reference number 202200328214.

You submitted the following request:

Please can you send me the correspondence set out in FOI 202200321971 "information released" unredacted. I am seeking disclosure of all redacted information (except names of non-senior employees) and including organisation suffixes on email addresses.

Upon receipt of the response to this request you submitted the below request for review:

“I am requesting an internal review of this response to my freedom of information request for the following reasons: I am seeking disclosure of all attachments to the email correspondence (including missing ones). Personal information relating to employees of any organisation below senior manager level can remain redacted. However, organisation identifiers in email addresses (after "@") is not personal information and therefore must be disclosed.

"With regard to the application of the FOISA exemptions, I do not believe that either apply - I do not believe the significant probability of substantial commercial prejudice or the significant probability of substantial inhibition exists in this case.”

Response

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. As such I feel more information can be released and I have provided this to you separately.

I have concluded that some information should be withheld under section 33(1)(b) – commercial interest – because if it was released it would negatively impact the business and potentially damage negotiations, day-to-day operations and other activity. The Government owes a duty of care to the handling of commercially sensitive material particularly where such a release could negatively impact upon the wider global refinancing activities of the GFG Alliance. Given the importance of the business to the economy of the West Highlands and beyond, along with the interests of the employees who work there, I have determined that the public interest test lies in favour of withholding the information. This becomes even more important when events with external parties are still ongoing and in an effort to maintain a well-functioning working relationship with companies and external advisors. Although I have considered, and have taken into account, the public interest in transparency and accounting for how public money is being spent, it is not in the public interest to release information that would prejudice this and deprive the taxpayer of best value for money. However, in my review I feel additional information initially withheld can now be released to you.

I would like to advise that the application of section 30(b)(ii) (free and frank exchange of views) was incorrectly applied. I have released the information withheld to you in this review – attached separately.

I have determined that the application of the exemption under section 30(c) of FOISA (prejudice to effective conduct of public affairs) in your initial response was incorrectly applied. Some information pertaining to the source of third party legal advice was withheld under this exemption when section 38(1)(b) – Personal information was appropriate.

Regarding the use of section 38(1)(b) - Personal information - this exemption applies to the names and contact details of officials and equivalent third party representatives within the report. This exemption is not subject to the public interest test but I can confirm there is additional information initially withheld under this exemption in error that I have now released.

Finally, I would also like to affirm that an exemption under section 36(2) of FOISA (actionable breach of confidence) applies to some of the information requested because they are letters 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 the 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. However, in the initial case, additional letters were incorrectly withheld in their entirety using this exemption. I have now released the letters as part of this response with sections of the text withheld.

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.