Documentation in respect of a public sector bid for rail franchises in Scotland: FOI release

FOI reference: FOI/18/02320
Date received: 18 August 2018  
Date responded: 29 October 2018

 

 

You asked for

a copy of all correspondence between the Scottish Government and

1. Scotrail,
2. Abellio
3. David MacBrayne

about a public sector bid for the Scotrail franchise. 

Any briefing notes prepared for ministers ahead of discussions with any of the above companies about a public sector bid for Scotrail.

The time period for this request is from April 1, 2016, until today’s date [19 August 2018]. 

 

I attach a copy of some of the information you requested in the format you asked for.

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 of exemption(s) under section(s) Section 30(b)(ii) of FOISA  – free and frank exchange of views for the purposes of deliberation; section 33(1)(b) – commercial interests of FOISA applies to that information; and s.38(1)(b) which applies to a very small part of the information you have requested because it is personal data and its release would contravene the data protection principles in Schedule 1 to the Data Protection Act 1998.

Reasons for not providing information

Section 30(b)(ii) – free and frank exchange of views for the purposes of deliberation. 

This exemption applies because disclosure would, or would be likely to, inhibit substantially the free and frank exchange of views for the purposes of deliberation. This exemption recognises the need for Ministers to have a private space within which to discuss issues and options with external stakeholders before the Scottish Government reaches a settled public view. Disclosing the content of these discussions will substantially inhibit such discussions in the future, because these stakeholders will be reluctant to provide their views fully and frankly if they believe that those views are likely to be made public, particularly while these discussions are still ongoing and decisions have not been taken, and/or these discussions relate to a sensitive or controversial issue such as contractual information.

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 position on commercial discussions, 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 decisions can be taken based on fully informed advice and evidence. 

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 decision making process, which would not be in the public interest. There is also an important public interest in avoiding the loss of stakeholder confidence in cases where they thought they were providing comments in confidence, which would be inevitable if an individual’s contribution was released against their wishes.

Section 33(1)(b) – commercial interests

An exemption under section 33(1)(b) of FOISA (commercial interests) applies to some of the information requested. This exemption applies because disclosure of this particular information would, or would be likely to, prejudice substantially commercial interests. Contractual information relating to particular projects, eg disclosing this information would be likely to give other competitors an advantage in future similar tendering exercises, which would substantially prejudice an ability to submit competitive tenders.

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 and transparent government, and to help account for the expenditure of public money.  

Personal information

s.38(1)(b) (personal information) and incidental references to officials (or other individuals acting in their business/professional capacity), applies to a very small part of the information you have requested which has been redacted. This relates to individuals’ names. It is exempt from release because it is personal data and its release would contravene the data protection principles in Schedule 1 to the Data Protection Act 1998.