Communication relating to handling of BBC Disclosure documentary 'The Great Ferries Scandal': FOI release

Information requested

Any internal correspondence relating to the communications handling of the BBC Disclosure documentary 'The Great Ferries Scandal'. To include, but not be limited to, any emails discussing how to respond to the allegations aired in the documentary, and any discussions with external individuals on the same topic.

Response

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

Item	Reference
Email 1	Subject: FMQ Update (26th September 2022)
Email 2	Subject: BBC Scotland documentary (9th September 2022)
Email 3	Subject: 801/802 – BBC Allegations – DRAFT advice to Ministers for Comment by 3PM
Email 4	Confidential and Legally Privileged [ADDGDD-ACTIVE.FID2578500]
Email 5	Ferries Disclosure
Email 6	Immediate - Submission on BBC allegations in relation to procurement process for vessels 801 and 802
Email 7	Interview
Email 8	Immediate - BBC allegations in relation to procurement process for vessels 801 and 802 some background information from FMPG received this morning - official sensitive
Email 9	Urgent question selected for today
Attachment 1	FMEL - BBC Disclosure Scotland interview - draft briefing - 21 September 2022
Attachment 2	Statement for CMAL - FINAL 16.09.2022
Attachment 3	Submission to DFM - BBC allegations in relation to procurement process for vessels 801 and 802

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 apply which are detailed below

An exemption under section 25(1) of FOISA applies to some of the information requested because the information is otherwise accessible. I would refer you to the Official Report of the Scottish Parliament for the 29th September 2022, which is the formal record of the information provided by the First Minister and where some of the information is otherwise accessible. The Deputy First Minister and the Minister for Transport set out the Scottish Government’s position during Meetings of the Parliament on 27th and 28th September and can be accessed on the Official Reports of the Scottish Parliament.

These exemptions are 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 exemptions. We have found that, on balance, the public interest lies in favour of upholding the exemption for the advice.

An exemption under section 30 (b)(i) and Section 30(b)(ii) of FOISA applies to some of the information requested because the information in question is regarded as a free and frank provision of advice or exchange of views.

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 free and frank advice and views to Ministers in briefing for First Ministers Questions. It is clearly in the public interest that Ministers can properly answer Parliamentary questions, provide sound information to Parliament (to which they are accountable), and robustly defend the Government’s policies and decisions. They need full and candid advice from officials to enable them to do so. Premature disclosure of this type of information could lead to a reduction in the comprehensiveness and frankness of such advice and views in the future, which would not be in the public interest.

An exemption under section s.33(1)(b) of FOISA applies to some of the information you have requested. We are unable to provide a breakdown of the information on spending as this information is commercially sensitive. This is covered by Section 33 of the Freedom of Information (Scotland) Act 2002 (FOISA) (ii) disclosure would (or would be likely to) prejudice substantially the commercial interests of any person or organisation s.33(1)(b). 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.

An exemption under section 36(1) of FOISA (confidentiality in legal proceedings) applies to some of the information requested because it is legal advice and disclosure would breach legal professional privilege.

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 as part of open and transparent government, and to inform public debate. However, this is outweighed by the strong public interest in maintaining the right to confidentiality of communications between legal advisers and clients, to ensure that Ministers and officials are able to receive legal advice in confidence, like any other public or private organisation. The release of the content of such legal advice is likely to be appropriate only in highly compelling cases. This has been recognised by both the Scottish Information Commissioner and the courts.

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. Names/contact details of individuals have neem redacted as 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.

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FOI 202200322232 - Information Released - Annex

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