Ferguson Marine Port Glasgow and First Marine International/Royal: FOI release

Information requested

I'd like to follow up on an FOI response you have given to FOI reference 202300354048 The correspondence provided seem to end rather abruptly with an email from David Tydeman back to the Scottish Government officials in which he says he will try and find out about the previous NDA but that it was before his time, Were there any other formal or informal communications with Mr Tydeman to follow up on this matter or to respond to it and to find out the answer. Presumably FMPG does hold this information on behalf of Scottish Ministers so I assume it can be accessed from company records as the company must retain records of who has actually signed what NDA otherwise they would not be enforceable. Please provide all correspondence including details of the number and dates of all NDAs which have been put in place and which are still valid regarding FMPG.

Response

1. The correspondence provided seem to end rather abruptly with an email from David Tydeman back to the Scottish Government officials in which he says he will try and find out about the previous NDA but that it was before his time, Were there any other formal or informal communications with Mr Tydeman to follow up on this matter or to respond to it and to find out the answer. This is formal notice under Section 17(1) of FOISA, that the Scottish Government does not hold the information requested. Any queries in relation to material held by FMPG should be addressed to FMPG.

2. Please provide all correspondence including details of the number and dates of all NDAs which have been put in place and which are still valid regarding FMPG.”
The Scottish Government has put in place 10 NDAs which are currently still in place with regards to FMPG. As the Scottish Government has previously confirmed, an NDA was signed in preparation for confidential information being shared ahead of a contract award relating to the due diligence report on the costs for vessels 801 and 802. he other parties to that contract were Ferguson Marine (Port Glasgow) Limited (FMPG) and our advisors, Teneo Financial Advisory and Woodbank Marine. That NDA did not extend to the completed due diligence report. As it transpired, the NDA was only finalised by all parties on the day the contract was signed (29 September 2022), meaning it was immediately superseded.

With regards to the other nine NDAs referenced, these remain active and relate to ongoing commercially sensitive work. I am therefore unable to provide the details you request at this time. While our aim is to provide you information wherever we can, on this occasion after reviewing the information within scope on a line-by-line basis we are unable to provide you with some of the information you have requested as statutory exemptions under FOISA apply. Details on what exemptions apply and why can be found in the annex attached.

Under section 25(1) of FOISA, we do not have to give you information which is already reasonably accessible to you. In this instance, the document is available at:

• FMPG PAC to Cab Sec WEFWE (parliament.scot)
• Correspondence relating to Project Chestnut: FOI release - gov.scot (www.gov.scot)

ANNEX A

Section 30 – prejudice to effective conduct of public affairs
An exemption under section 30 of FOISA (prejudice to effective conduct of public affairs) 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 effective conduct of public affairs of the Scottish Government, including the free and frank exchange of views for the purposes of deliberation, and the free and frank provision of advice. 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. However, this interest is outweighed by the need for Ministers and officials to be able to discuss complicated and sensitive issues freely in the service of delivering both comprehensive and accurate advice, and effective policy.

Section 38(1)(b) – applicant has asked for personal data of a third party
An exemption under section 38(1)(b) of FOISA (personal information) applies to some of the information requested because it is personal data of a third party, i.e. names/contact details of individuals, 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.

Section 36(1) – confidentiality in legal proceedings
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.

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 - 202400393741 - Information released - Supporting documents

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