Sacking of the Chief Executive of Ferguson Marine: FOI release

Information requested

1. The full response to that email by (i) the Cabinet Secretary and her office and then (ii) the First Minister and his office.

If it was an email response then include the whole chain for context. Whatever format the reply came in please provide it.

2. A copy of each email, letter or message sent by McAllan and her office regarding David Tydeman between February 28th to March 25th 2024.

3. A copy of each email received by the McAllan and her office regarding David Tydeman between February 28th to March 25th 2024.

4. A note of the date and time of any meetings McAllan had between February 28th and March 18th 2024 either with Ferguson Marine or the First Minister to discuss David Tydeman’s future as CEO of Ferguson Marine.

5. All correspondence received by the Cabinet Secretary from Ferguson Marine between February 28th and March 18th regarding David Tydeman.

Please also fulfil this same request for the First Minister.

Response

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

1. Please find the rest of the email chain requested 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, Section 30(b)(ii) – Free and Frank Provision of Advice, Section 30(b)(ii) – Free and Frank Exchange of Views, Section 30(c) – Substantial Prejudice to Effective Conduct of Public Affairs, and Section 36(1) Legal Advice to some of the information. More details can be found in the annex.

2/3. Please find the correspondence sent to and from the Cabinet Secretary for Net Zero and Energy (formerly Wellbeing Economy, Net Zero, and Energy), Ms Màiri McAllan, and the former First Minister, Humza Yousaf, regarding David Tydeman between 28 February 2024 - 25 March 2024.

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, Section 30(b)(ii) – Free and Frank Provision of Advice, Section 30(b)(ii) – Free and Frank Exchange of Views, Section 30(c) – Substantial Prejudice to Effective Conduct of Public Affairs, and Section 36(1) Legal Advice to some of the information. More details can be found in the annex.

4. Please note that there was one meeting in which Ms. McAllan and the former First Minister discussed David Tydeman's future as CEO of Ferguson Marine. This was held on Tuesday 05 March 2024 at 09:30 am.

5. There was no correspondence received by Ms. McAllan or the former First Minister from Ferguson Marine between 28 February and 18 March regarding David Tydeman.

While our aim is to provide information whenever possible, in this instance the Scottish Government does not have the information you have requested. I therefore apply Section 17 (1) (b) as the authority does not hold that information, it must, within the time allowed by or by virtue of section 10 for complying with the request, give the applicant notice in writing that it does not hold it.

Annex

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 where such 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 30(b) – free and frank provision of advice and free and frank exchange of views

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

1. the free and frank provision of advice (section 30(b)(i)) or
2. the free and frank exchange of views (section 30(b)(ii)).

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 between officials and 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.

Section 30(c) – Substantial Prejudice to Effective Conduct of Public Affairs

Information is exempt under Section 30(c) as disclosure would, or would be likely to, inhibit substantially a free space in which to execute and conduct public affairs. There is a greater public interest in maintaining the process of achieving collective responsibility within a private space within which policy positions can be explored and refined by Ministers in order that the Government, as a whole, can conduct public affairs effectively . This private space also allows for effective processes to take place and to be properly considered, so that good policy decisions can be executed. Premature disclosure is likely to undermine the conduct of public affairs, which in turn will undermine the quality of the policy-/decision-making process.

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 the public interest in its disclosure. This exemption applies to legal advice sought in regards 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 202400415595 - Information released - Annex

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62 page PDF

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11.7 MB