Scottish National Investment Bank employees and lack of advisory board: FOI release

Information requested

1. Could you supply all correspondence received and sent by the Scottish Government, including internally, notes and minutes from meetings, and briefings written about the Scottish National Investment Bank and its lack of advisory board and its profit and losses, from between October 1 2023 and the date of this FOI?

2. Could you supply all correspondence received and sent by the Scottish Government, including internally, notes and minutes from meetings, and briefings written about the Scottish National Investment Bank, about any alleged cases of conflict of interest in relation to bank employees?

3. How many meetings has the government had with the bank to discuss any alleged cases of conflict of interest in relation to bank employees being involved in investments in external companies, and could you supply minutes from these meetings?

Response

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

Information relating to the lack of advisory board.

Information relating one aspect of Part 1 of your request about the lack of “advisory board” (which we have interpreted as the Ministerial Advisory Group) between 1 October 2023 and the date of your FOI request is attached at Annex A.

Information relating to profit and losses.

While our aim is to provide information whenever possible, information relating to the other aspect of Part 1 of your request about the Scottish National Investment Bank and its profit(s) and loss(es) between 1 October 2023 and the date of your FOI request would breach the upper cost limit.

In this instance, the costs of locating, retrieving and providing the information requested in relation to profit(s) and loss(es) in relation to the Bank would exceed the upper cost limit of £600. The number of items of information containing the wording profit or profits and loss or losses in relation to the Bank is substantial (over 10,000 items) and the costs of searching for such items in mailboxes and in our electronic records management system across relevant areas of the Scottish Government, plus sifting these items to identify whether they are in scope and, where appropriate, undertaking any necessary redaction of that information which is not in scope or requiring exempting would exceed this upper cost limit. Under section 12 of FOISA public authorities are not required to comply with a request for information if the authority estimates that the cost of complying would exceed the upper cost limit, which is currently set at £600 by Regulations made under section 12.

You may, however, wish to consider reducing the scope of your request in order that the costs can be brought below £600. There is a substantial amount of information between the Scottish Government and the Bank covering the subject of profit(s) and loss(es) and you might wish to narrow down the timeframe or be more specific in describing the subject(s) or business area(s) in which you are interested. You may also find it helpful to look at the Scottish Information Commissioner’s ‘Tips for requesting information under FOI and the EIRs’ on his website at: http://www.itspublicknowledge.info/YourRights/Tipsforrequesters.aspx.

Information / meetings relating to alleged cases of conflict of interest in relation to Bank employees.

Regarding information relating to Part 2 of your request about the Scottish National Investment Bank and any alleged cases of conflict of interest in relation to Bank employees and Part 3 of your request about how many meetings the government has had with the Bank to discuss any alleged cases of conflict of interest in relation to Bank employees being involved in investments in external companies, the Scottish Government does not have the information you have asked for because it holds no information about alleged cases of conflict of interest in relation to Bank employees and no meetings have been held in this regard. This is a formal notice under section 17(1) of FOISA that the Scottish Government does not have the information you have requested.

Exemptions

We are unable to provide some of the information you have requested because of the following exemptions:

An exemption under section 29(1)(a) of FOISA (formulation or development of government policy) applies to a limited amount of the information requested because it relates to the formulation and development of the Scottish Government’s policy on the establishment of the Ministerial Advisory Group.

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 high quality policy and decision-making, and in the properly considered implementation and development of policies and decisions. This means that Ministers and officials need to be able to consider all available options and to debate those rigorously, to fully understand their possible implications. Their candour in doing so will be affected by their assessment of whether the discussions on the establishment of the Ministerial Advisory Group will be disclosed in the near future, when it may undermine or constrain the Government’s view on that policy while it is still under discussion and development.

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 a limited amount the information requested. This exemption applies because revealing the Scottish Government’s legal advice 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 the establishment of the Ministerial Advisory Group. 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. There is no public interest in breaching that Convention by divulging which lawyers provided advice on any issue.

An exemption under section 36(1) of FOISA (confidentiality in legal proceedings) applies to a one element 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.

An exemption under section 38(1)(b) of FOISA (personal information) 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.

Information otherwise available.

Some of the information you have requested is otherwise available publicly from the Scottish Parliament website. Such information is available by way of answers to Parliamentary Questions (PQs) (see Annex B list PQs, although we have provided some information relating to the Background Notes provided for these PQs). Other information relating to the Bank’s profits and losses is available in the Bank’s Annual Report and Accounts and in other documents which are available on the Bank’s website (www.thebank.scot).

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 paper copy.

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 202400409594 - Information released - Annex A and B

File type

18 page PDF

File size

404.1 kB