2017/18 Correspondence: HIE on Scottish National Investment Bank:FOI release

FOI reference: FOI/18/01149
Date received: 21 March 2018
Date responded: 21 May 2018

Information requested

All correspondence between Scottish Enterprise, Highland and Islands Enterprise and the Scottish Government on the Scottish National Investment Bank in the past year.

Response

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: S.27(1) (Information intended for future publication), S.29(1)(a) (Formulation or Development of Scottish Government Policy), S.30(b) (Free and Frank Provision of Advice or Exchange of Views), S.30(c) (Otherwise prejudice effective conduct of public affairs), S.33(1)(b) Commercial Interests and S.38(1)(b) (Third Party Data) of FOISA apply. The reasons why those exemptions apply are explained in the Annex to this letter.

Reasons for not providing information

An exemption under section 27(1) of FOISA (Information Intended for Future Publication) applies to some of the information requested because Scottish Enterprise intends to publish that information toward the end of May 2018, which is within 12 weeks of the date of your request. We consider that it is reasonable to withhold the information until that date, rather than release some of this information before the planned publication date.

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. We recognise that there is some public interest in release because of the Freedom of Information (Scotland) Act 2002 (FOISA) and this will be met by the planned publication. In the meantime, there is a greater public interest in taking the time necessary to ensure the information has been properly collated and checked before it is published as planned. Also, we see no public interest in disrupting our programme of work to release the information ahead of the intended publication date.

An exemption under section 29(1)(a) of FOISA (Formulation or Development of Scottish Government Policy) applies to some of the information you have requested because it relates to the formulation of the Scottish Government's policy on the Scottish National Investment Bank.

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. 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 high quality policy and decision-making, and in the properly considered implementation and development of policies and decisions. This means that Ministers and officials need to be able to consider all available options and to debate those rigorously, to fully understand their possible implications. Their candour in doing so will be affected by their assessment of whether the discussions on the Scottish National Investment Bank will be disclosed in the near future, when it may undermine or constrain the Government's view on that and related policies.

An exemption under section 30(b)(ii) of FOISA (Free and Frank Exchange of Views) 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 future exchange of views. This exemption recognises the need for Ministers and officials to have a private space within which to discuss and explore options before the Scottish Government reaches a settled public view. Disclosing the content this advice and discussions on the Scottish National Investment Bank will substantially inhibit these in the future, particularly because these discussions are still on-going.

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. 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 full and frank advice to Ministers and other officials, as part of the process of exploring and refining the Government's policy positions. This private thinking space is essential to enable all options to be properly considered, based on the best available advice. Premature disclosure is likely to undermine the full and frank discussion of issues between Ministers and officials, which in turn will undermine the quality of the policy making process, which would not be in the public interest.

An exemption under section 30(c) of FOISA (Otherwise prejudice effective conduct of public affairs) applies to some of the information requested. It is essential for Ministers and officials to communicate in confidence with external stakeholders on a range of issues, including the Scottish National Investment Bank. Disclosing the content of these communications, particularly without the consent of the stakeholder, is likely to undermine their trust in the Scottish Government and will substantially inhibit communications on this type of issue in the future. These stakeholders will be reluctant to participate in meetings and to provide their views fully and frankly if they believe that their views are likely to be made public, particularly while [these discussions are still ongoing and decisions have not been taken. This would significantly harm the Government's ability to carry out many aspects of its work, and could adversely affect its ability to gather all of the evidence it needs to make fully informed policies and decisions.

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. 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 Ministers and officials a private space within which to communicate with appropriate external stakeholders as part of the process of exploring and refining the Government's response on the Implementation Plan of the Scottish National Investment Bank, until the Government as a whole can adopt a decision that is sound and likely to be effective. This private space is essential to enable all options to be properly considered, so that good policy decisions can be taken based on fully informed advice and evidence, such as that provided by the stakeholders involved in the development of the Implementation Plan for a Scottish National Investment Bank. Premature disclosure is likely to undermine the full and frank discussion of issues between the Scottish Government and these stakeholders, which in turn will undermine the quality of the decision making process, which would not be in the public interest.

An exemption under S.33(1)(b) Commerical Interests applies to some of the information as disclosure would (or would be likely to) prejudice substantially the commercial interests of a person or organisation. An exemption applies, the following information is not subject to the public interest test.

An exemption under section 38(1)(b) of FOISA (personal information) applies to some of the information requested because it is personal data of a third party, ie names/contact details of individuals, and disclosing it would contravene the data protection principles in Schedule 1 to the Data Protection Act 1998. 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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FoI-18-01149 - documents released.pdf

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