Documents monitoring grid connection since May 2021: FOI review

Information requested

Please provide all Scottish Government records relating to monitoring progress on the grid connection of the Lochaber hydro plant.

Please review the response to the above referenced FOI on the following grounds:

1. The public interest test has been misapplied
   There is significant public interest in the Scottish Government's £586m guarantee to the Lochaber hydro plant. Quantifying the risk and exposure of the guarantee depends critically on the status of the grid connection. Redacting key information on the status of the grid connection can only be justified if prejudice to commercial interests genuinely is "substantial".
2. Further information must exist
   Given the pivotal nature of the grid connection in understanding the risk and exposure of the guarantee, it is not credible that the Scottish Government’s monitoring of this situation amounts to only one single sentence remark. Please conduct a more thorough search and release all relevant information. Any further information should be unredacted, unless the prejudice to commercial interests can be credibly said to be “substantial”.

Response

The public interest test has been misapplied

In this instance the prejudice to commercial interests is negligible, bordering on non-existent. The capacity of the Lochaber hydro plant is equal to 0.1% of the total GB installed generation capacity. Information on how much output the Lochaber hydro plant might (or might not) export to the grid would have a negligible impact on the GB wholesale electricity market. Information relating to the export capacity clearly does not represent “substantial prejudice to commercial interests”. The prejudice to commercial interests in releasing the information unredacted is essentially nil.

Further information must exist

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. Given the relatively brief lapse in time since your initial request, I have concluded that the original decision should be upheld with modifications and as such there is additional information I feel can now be released at review. In addition, I would like to advise that more information falling within the scope of your request was held by Scottish Government officials and I have provided it to you as part of this review response.

Scottish Government officials have determined that the application of the exemptions are valid and apply to the information that has been withheld. However, in my review I have identified further information that can be released without causing damage to the stakeholders involved and within the public interest. I have also concluded that the information should correctly 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 information withheld from release does not relate solely to the status of the grid connection, but also sensitive information related to the business as a whole. 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 Scottish Government Ministers and officials 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.

I have attached the additional documents I previously mentioned that fell within the scope of your request for your reference. 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 FOISA apply to that information. The reasons why these exemption(s) apply are explained below, however the same rationale for the application of section 33(1)(b) as outlined above remains the same for these documents.

An exemption under section 38(1)(b) of FOISA applies to some of the information requested because it is personal data of a third party and disclosing it would contravene the data protection principles in Article 5(1) of the General Data Protection Regulation and in section 34(1) of the Data Protection Act 2018. 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.

The exemption under section 30(c) of FOISA (prejudice to effective conduct of public affairs) applies to this information. This exemption applies to references to the source of legal advice. Revealing the source of the Scottish Government’s legal advice on the matters relating to the GFG Alliance and aluminium smelter, would be likely to lead to conclusions being drawn from the fact that any particular lawyer has, or has not, provided advice, which in turn would be likely to impair the Government’s ability to take forward its work on matters related to the GFG Alliance. This would constitute substantial prejudice to the effective conduct of public affairs in terms of the exemption.

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 enabling the Scottish Government to determine how and from whom it receives legal advice, without facing external pressure or concerns that particular conclusions may be drawn from the fact that any particular lawyer has or has not provided legal advice on a particular matter. Releasing information about the source of legal advice would also be a breach of the long-standing Law Officer Convention (reflected in the Scottish Ministerial Code) which prevents the Scottish Government from revealing whether Law Officers either have or have not provided legal advice on any matter. Although Scottish Government Ministers and officials have considered, and have taken into account, the public interest in transparency and accounting for how public money is being spent, there is no public interest in breaching that Convention by divulging which lawyers provided advice on any issue.

Furthermore, an exemption under section 30(b)(ii) of FOISA (free and frank exchange of views) also 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 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 on the GFG grid connection and advice 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.

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 policy position on the Lochaber Guarantee and Reimbursement Agreement. 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 the decision making process, which would not be in the public interest. Although Scottish Government Ministers and officials have considered, and have taken into account, the public interest in transparency and accounting for how public money is being spent, 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.

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.

FOI - 202200303745 - Information release

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