Core Solutions mediation of Duff & Phelps and the Scottish Government: FOI Review

Information requested

Original request 202400440539

The precise instruction given to Core Solutions Limited to provide mediation between the Duff & Phelps and SGLD in the contract detailed below

and

All further information supplied by SGLD to Core Solutions to enable them to complete their work.

The contract you referred to is the contract awarded to Core Solutions Limited on 27 May 2022 in the context of Duff and Phelps v the Lord Advocate civil court action.

Response

I have now completed my review of our response to your request under the Freedom of Information (Scotland) Act 2002 (FOISA).

Your request was for:

“The precise instruction given to Core Solutions Limited to provide mediation between the Duff & Phelps and SGLD in the contract detailed below”;

and

“All further information supplied by SGLD to Core Solutions to enable them to complete their work.”

The contract you referred to is the contract awarded to Core Solutions Limited on 27 May 2022 in the context of Duff and Phelps v the Lord Advocate civil court action.

In your review request of 12 December you stated:

“Please see attached the FOI refusal which I wish to appeal

Grounds for appeal:

1. The public have a right to know the legal basis for government expenditure, as does Parliament. Proper scrutiny of government cannot take place if this information is withheld.

2. The information concerns a contract and is not privileged. It is not legal advice.

3. The sums involved are substantial. Reputed to be £20m plus £3m in legal costs. Such expenditure should be accounted for.

In other words, the exemptions used in the refusal should not apply”.

I have concluded that the original decision should be confirmed, with modifications.

Having reviewed the terms of your original request and the information identified as relevant to your request, I have concluded that the response to your original request did not identify additional information which falls within the scope of your request. However, I have also concluded that section 36(1) of FOISA - litigation privilege - applies to almost all of the original and additional information.

It may assist, in relation to the second part of your review request, for me to explain that litigation privilege, which is a situation in which confidentiality of communications arises, applies to communications in respect of litigation whilst the litigation is in contemplation and/or taking place. Whilst legal professional privilege out with the context of litigation applies only to communications between a lawyer and their client, litigation privilege covers a wide range of communications which relate to the preparation for, and handling of, the litigation in question, including the instruction of experts witnesses and law accountants.

You sought information about the “precise instructions” given to Core Solutions Group Limited in order to undertake mediation in relation to the litigation between Duff & Phelps and SGLD. You also sought information provided by SGLD to Core Solutions “to enable them to complete their work”. The parties entered into mediation during the course of live litigation proceedings therefore, the information you sought is covered by litigation privilege. The Scottish Ministers have not waived their privilege. On that basis, I am satisfied that section 36(1) FOISA applies to almost all the information you have sought.

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.

One document is attached to this response. It is the contract award letter to Core Solutions Group Limited. Some information in this document is not subject to any exemptions and, thus, is shown unredacted in the attached. However, some information has been withheld due to the application of the following exemptions under FOISA:

section 33(1)(b) - commercial interests;
section 36(1) - litigation privilege;
section 38(1)(b) - personal information.

I have noted above my consideration of the application of section 36(1).

An exemption under section 33(1)(b) of FOISA (commercial interests) applies to some of of the information requested. This exemption applies because disclosure of this particular information would, or would be likely to, prejudice substantially the commercial interests of Core Solutions Group Limited. Disclosing this information would be likely to give Core Solutions’ competitors an advantage in future similar tendering exercises, which would substantially prejudice Core Solutions’ ability to submit competitive tenders and so could significantly harm their commercial business.

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, there is a greater public interest in protecting the commercial interests of companies which enter into, Scottish Government contracts, to ensure that we are always able to obtain the best value for public money.

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 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.

About FOI

The Scottish Government is committed to publishing all information released in response to Freedom of Information requests. View all FOI responses at https://www.gov.scot/foi-responses.

FOI 202400445446 - Information released - Annex

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