Loan to Ferguson Marine Engineering Limited: FOI review

All information held regarding the loan of £30 million made by the Scottish Government in June 2018 to Ferguson Marine Engineering Limited, including but not limited to:

1.      All minutes and notes of meetings held between FME Limited and the Scottish Government.
2.      The loan agreement including interest terms and basis of repayment.
3.      Due diligence carried out by the Scottish Government on FME Limited prior to granting the loan.

I have concluded that the original decision should be confirmed with modifications.

You requested full disclosure of all information held in the public interest and in the interest of transparency. 

I have reviewed all of the relevant documents and reconsidered the decisions not to release. In particular I have reconsidered the exemptions applied and re-applied the public interest tests. I consider that the decision not to release information should be upheld with modifications. I have detailed my reasons for this decision below.

The original response quoted the following exemptions:

• Exemptions under sections 33(1(a)) and 33 (1(b)) of FOISA apply to some of the information you have requested because it relates to trade secrets and commercial information that may prejudice the company.

I have reconsidered all of the material to which these exemptions apply and have concluded that these exemptions should still be applied with modifications as detailed later in my letter. The information is highly commercially sensitive as it has commercial value and disclosure of the information could cause harm to company trade. I have also reconsidered the public interest test and taking account of all the circumstances of this case, I have considered if the public interest in disclosing the information outweighs the public interest in applying the exemption. I have found that, on balance, the public interest lies in favour of upholding the exemption. This is because the benefit of releasing this information to the public does not outweigh the impact of releasing commercially sensitive information which would substantially prejudice the company.

• An exemption also applies under section 36(1) of FOISA as the documents contain legal advice.

I have reconsidered all of the material to which this exemption applies and have concluded that this exemption should still be applied. In particular, legal advice privilege covers communications between lawyers and their clients where legal advice is sought or given. I have also reconsidered the public interest test and taking account of all the circumstances of this case, I have considered if the public interest in disclosing the information outweighs the public interest in applying the exemption. I have found that, on balance, the public interest lies in favour of upholding the exemption. The reason for this decision is that there is a strong public interest in maintaining the right to confidentiality of communications between legal adviser and client.

• Exemptions also apply under sections 30(b(i)) and 30(b(ii)) as the information, if disclosed, could inhibit substantially the free and frank provision of exchange and advice of views.

I have reconsidered all of the material to which these exemptions apply and have concluded that these exemptions should still be applied with modifications as detailed later in my letter. Of particular relevance to the material is the sensitivity of the advice as it relates to commercially sensitive information. I have also reconsidered the public interest test and taking account of all the circumstances of this case, I have considered if the public interest in disclosing the information outweighs the public interest in applying the exemption. I have found that, on balance, the public interest lies in favour of upholding the exemption. This is because the information is commercially sensitive and the benefit to the public for releasing  information does not outweigh the impact of inhibiting free and frank exchanges with Ministers.

The modifications described above relate to some information that I have concluded should be released and this is attached to this letter. This is information which was previously redacted in the submission from Mary McAllan to the Cabinet Secretary for Finance and Constitution dated 22 June 2018. Specifically information contained within para 27 of the document and Annexes E and J.

Finally, in my review of the information I have considered the additional points in your email of 07 August 2018. However, this does not alter any of the decisions detailed above.

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