Scottish National Investment Bank and Scottish Enterprise correspondence: FOI release

Information requested

Full correspondence between Kate Forbes during her tenure as Finance Minister and the Scottish National Investment Bank. This would entail -

1. All correspondence (emails, letters, texts, WhatsApp messages etc) between Kate Forbes and the Scottish National Investment Bank, between 1st November 2020 and 28 March 2023.

2. All correspondence (emails, letters, texts, WhatsApp messages etc) between Kate Forbes and the Scottish Enterprise Institute, between 17th February 2020 and 28 March 2023.

You subsequently clarified your request on 21 November 2023 in that by ‘Scottish Enterprise Institute’ you mean Scottish Enterprise.

Response

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

Some of the of the information you have requested (letter from Kate Forbes, Cabinet Secretary for Finance and the Economy to the Scottish National Investment Bank issuing a Fair Work Direction) is otherwise available publicly from the Scottish Government website:
https://www.gov.scot/publications/scottish-national-investment-bank-fair-work-direction/. Under section 25(1) of FOISA, we do not have to give you information which is already reasonably accessible to you. If, however, you do not have internet access to obtain this information from the website(s) listed, then please contact me again and I will send you a copy.

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 an exemption under section 38(1(b) (personal information) of FOISA applies to a small amount of that information, being the personal data of a third party, i.e. the names of junior officials and personal details of other persons. Disclosing such 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.

Exemptions under sections 30(b)(i) and 30(b)(ii) of FOISA (free and frank advice and exchange of views) also apply to aspects of some of the information requested. These exemptions apply because disclosure would, or would be likely to, inhibit substantially the free and frank provision of advice and exchange of views for the purposes of deliberation. The exemptions recognise the need for Ministers to have a private space within which to seek advice and views from officials before reaching the settled public position. Disclosing the content of free and frank briefing material on these matters will substantially inhibit such briefings in the future, particularly as such matters were still ongoing at the time and final decisions had yet to be taken or positions agreed.

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 exemptions. 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 briefings and submissions or in relation to investment propositions. It is clearly in the public interest that Ministers can properly make decisions, potentially provide sound information to Parliament (to which they are accountable) and to understand fully the investments being made. They need full and candid advice from officials to enable them to do so. 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 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 communicate, often in confidence, with external stakeholders on a range of issues, including for example budget setting matters. Disclosing the detail of such communications, 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 provide their views fully and frankly if they believe that their views are likely to be made public. This would significantly harm the Government’s ability to carry out many aspects of its work and could adversely affect its ability to gather 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 communicate with appropriate external stakeholders as part of the process of exploring and refining the Government’s position in budget setting until the Government as a whole can finalise its position that is sound and likely to be effective. This private space is essential to enable all options to be properly considered, so that good budget decisions can be taken based on fully informed advice and evidence, such as that provided by the Scottish National Investment Bank. 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 33(1)(b) applies when disclosure of the information would, or would be likely to, prejudice substantially the commercial interests of any person. A limited amount of the information you have requested is sensitive commercial information about investments made by the Bank and the companies in which they have invested.

As the exemption is also subject to the 'public interest test'. This means we have, in all the circumstances of this case, considered if the public interest in disclosing the information outweighs the exemptions. We have found that, on balance, the public interest lies in favour of upholding the exemptions. While we recognise that there is a general public interest in how public money is spent, there is a greater public interest in protecting the integrity of commercial investment decisions and the commercial interests of investees, so that they or others are not deterred from seeking investment from the Bank in the future.

You also asked for texts or WhatsApp messages between Kate Forbes and the Scottish National Investment Bank or between Kate Forbes and Scottish Enterprise. In this instance the Scottish Government does not have the information you have requested. The retention of mobile messages is covered in the Scottish Government Records Management Policy. The records management policy applies to all records and information relevant to the corporate record must be saved. This is a formal notice under section 17(1) of FOISA that the Scottish Government does not have the information you have requested.

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 202300385487 - Information released - Annex

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