Caledonian MacBrayne resignation and Ferguson Marine dismissal: FOI release

Information requested

• A copy of the first notification the Scottish Government were given by CalMac that their Chief Executive was going to resign, (whenever you were first told it could happen) to include the date and time of that notification and who it was sent from and to.
• A copy of the first notification the Scottish Government were given by Ferguson Marine Board that the Chief executive of FM was going to be sacked; and
• A copy of the notification received by the Minister from Ferguson Marine the previous month about an action to potentially sack the Chief Exec. Also, include who it was sent from or to.

Response

The answer to your first question is:

I can confirm that on Monday, 25 March 2024 at 4 p.m., the Chair of the Board of David MacBrayne Ltd, (Mr Erik Ostergaard) formally notified the CEO of Transport Scotland (Alison Irvine) of the Board’s intentions in relation to the Chief Executive of CalMac Ferries Ltd. This notification was made verbally by way of a Teams call.

The answer to your second question is:

The initial notification Scottish Government received that the Board of Ferguson Marine were taking steps to dismiss the CEO was given verbally to an official at a meeting with the Ferguson Marine Board on 30 November 2023. At that stage, the Board’s decision was pending legal due diligence, and the final decision was first communicated to Scottish Ministers on 28 February 2024 (see the document dated 28 February 2024 addressed to the First Minister in the binder attached). 

While our aim is to provide information whenever possible, in this instance we are unable to provide some of the information you have requested. Under the Freedom of Information (Scotland) Act 2002 (FOISA), I apply exemptions under regulation Section 38(1)(b) – Third Party Personal Information, and Section 33(1)(b) – Prejudice to Commercial Interests, Section 30(b) (ii) – Free and Frank Provision of Advice, and Section 36(1) Legal Adviceto some of the information. More details can be found Annex A.

The answer to your third question is:

The formal notice of a possible decision to dismiss the former CEO was communicated to Ministers on 28 February 2024 as mentioned in the response above.

ANNEX A

Section 38(1)(b) – Third Party Personal Information

Section 38 of FOISA contains four exemptions, all relating to personal information. Information is exempt from disclosure if it is:

• the personal data of the person requesting the information (section 38(1)(a));
• the personal data of a third party – but only if other conditions apply (section 38(1 (b));
• personal census information (section 38(1)(c)); or
• a deceased person's health record (section 38(1)(d)).

We are applying 38(1)(b) to a small amount of information. The information being withheld under 38(1)(b), highlighted in yellow in this case, consists of names of individuals within the Scottish Government. As such those individuals can be identified from this information and therefore it is personal data as defined by section 3(2) of the DPA 2018.

None of the personal data being withheld falls into any of the special categories of personal data, or is data relating to criminal convictions, offences, or related security measures. The Scottish Government has a general approach of disclosing information about senior members of staff, releasing details of those within senior civil service roles and officials with relatively senior roles that are public facing, but withholding those details for more junior members of staff.

It is the first data protection principle in Article 5(1) of the GDPR which would be contravened through release of this information, 5(1)(a), which states that personal data shall be processed lawfully, fairly and in a transparent manner in relation to the data subject. It would be unfair to release the information because the individuals in question who are more junior members of staff would not expect their personal data to be processed in this way and we do not consider the processing necessary for the purpose of meeting the request. We do not consider that we have a lawful basis under which to process the personal data for the purposes of answering the request.

In considering that 5(1)(a) will be contravened, we have concluded that the only condition that could apply to allow us to process the data to answer the request is 6(f) “processing is necessary for the purposes of the legitimate interests pursued by the controller or by a third party, except wheresuch interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child.”

The Commissioner’s guidance indicates that this is likely to be the only condition of relevance to processing personal data for the purposes of responding to FOI requests. We are not aware of any legitimate interests that the applicant has in the names and direct contact details of officials, or that identifying the individuals would aid in the understanding of the withheld information. Even if the requester did have legitimate interests, we do not believe these would outweigh the individuals’ interests in protecting their privacy. We therefore consider that this information was exempt from disclosure under section 38(1)(b) of FOISA.

Section 33(1)(b) – Substantial prejudice to commercial interests

Information is exempt under section 33(1)(b) if its disclosure would, or would be likely to, prejudice substantially the commercial interests of any person. “Person” includes a public authority, company, and partnership.

We recognise that there is a public interest in the release of this information as part of an open, transparent, and accountable government and to inform public debate. We also recognise the public interest in Ferguson Marine and in how the government works with companies such as Ferguson Marine when public funds are involved. However, given the importance of the business to Scotland, we believe that this is outweighed by the public interest in protecting the trust of Ferguson Marine and companies that work with Ferguson Marine in their relationship with the Scottish Government. It is of vital importance to Scotland, and the people of Scotland, that the Scottish Government can intervene to protect jobs and the wider economy. The public interest lies in protecting some sensitive information in the service of allowing future interventions.

It is essential that the SG can continue to have a productive relationship with companies like Ferguson Marine (FMPG), and that Ferguson Marine can continue to have productive relationships with other external companies, who run businesses of national and local importance to Scotland. The shipyard is a significant employer in the local area, and SG has significant interest in the business. Disclosure of some of the commercial names contained within the document would substantially prejudice the conduct of public affairs.

a) by impacting on the ability of Scottish Ministers’ ability to negotiate in relation to FMPG;
b) by making distressed businesses less likely to engage with Scottish Government support;
c) removing the private space for consideration that is required by government to make decisions in relation to a significant contract with implications for jobs and the economy.

Section 30(b) – free and frank provision of advice

Information is exempt under sections 30(b) if disclosure would, or would be likely to, inhibit substantially:

• the free and frank provision of advice (section 30(b)(i)) or

We recognise that there is a public interest in the release of this information as part of an open, transparent, and accountable government and to inform public debate. We also recognise the public interest in how the government works with companies such as Ferguson Marine when public funds are involved.

When applying the public interest test in this regard, the question is whether the public interest in maintaining the exemption outweighs the public interest in disclosing the information. In this case, it was found that this free and frank advice provided by officials to Ministers allowed for candid discussion to help make an informed decision and disclosing it would remove the private space for consideration between the government and Ministers. This could potentially hinder decision making going forward, making it difficult to make decisions related to the delivery of the two vessels, 801 and 802.

Section 36 (1) – Legal Advice

Information in respect of which a claim to confidentiality of communications could be maintained in legal proceedings (for example, if information is "legal privileged") (section 36(1))

Applying the public interest test to this exemption involves weighing the public interest in withholding the information against he public interest in its disclosure. This exemption applies to legal advice sought in regard to the contents of the email. It is essential that the SG can continue to have a productive relationship with companies like Ferguson Marine (FMPG), and that Ferguson Marine can continue to have productive relationships with other external companies, who run businesses of national and local importance to Scotland. Therefore, it was decided that the exemption is upheld in order to safeguard the integrity and efficiency of government and legal processes.

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 - 202400407562 - Information released - Supporting Documents

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