First Minister meeting with German investors: FOI release

FOI reference: FOI/18/03067
Date received: 22 October 2018
Date responded: 19 November 2018

 

 

You asked for “all briefing documents created in advance of the First Minister’s meeting with German investors on 25/06/2018. A list of everyone present at the meeting and its location. Any notes taken at the meeting. Any minutes created of the meeting. Any action points created after the meeting.”

 

 

I enclose a copy of some of the information you requested.

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 S38(1)(b)(personal information), 30(c) (effective conduct of public affairs), 30(b)(ii) (free and frank exchange of views for the purposes of deliberation) and S33(1)(b) (commercial interest) of FOISA apply to that information. The reasons why those exemptions apply are explained below.

 

 

38(1)(b) of FOISA (personal information).

An exemption under section 38(1)(b) of FOISA (personal information) applies to a small amount of the information requested because it is personal data of a third party, i.e. names and 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.

33(1)(b) of FOISA (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 the commercial interests of attendees. Disclosing this information would be likely to give the attendees competitors an advantage in future tendering exercises, which would substantially prejudice their ability to submit competitive tenders and so could significantly harm their commercial business. 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. However, there is a greater public interest in protecting the commercial interests of companies and ensuring fair competition in such tendering processes in order to avoid putting winning bidders at a disadvantage against its competitors. Companies would be reluctant to supply such information to the Scottish Government if the information were to be released into the public domain with the result of causing real, significant and substantial prejudice to their ability to compete against other companies, about whom similar information is not in the public domain.
 
Section 30(c) of FOISA (substantial prejudice to the effective conduct of public affairs).

 

An exemption under section 30(c) of FOISA (prejudice to effective conduct of public affairs) applies to some of the information requested. It is essential for Ministers to be able to meet, often in confidence, with external stakeholders on a range of issues, including business and commercially sensitive concerns. Disclosing the information about these meetings, 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 or 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, and these discussions relate to a sensitive or controversial issue such as commercial and business operations. 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 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 meet with appropriate external stakeholders as part of the process of exploring and refining the Government’s position, 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, such as that provided by businesses. 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.  

 
Section 30(b)(ii) – free and frank exchange of views for the purposes of deliberation. 
 
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 exchange of views for the purposes of deliberation. 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 of free and frank discussions on ongoing negotiations, and commercial and business operations will substantially inhibit such discussions in the future, particularly because these discussions relate to a sensitive or controversial issue such as business operations and future trade and investment.
 
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 explore and refine the Government’s position on support for business and trade and investment opportunities until the Government as a whole can adopt a policy that is sound and likely to be effective. This private thinking space is essential to enable all options to be properly considered, so that good decisions can be taken. 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 decision making process, which would not be in the public interest.