Minister for Business, Trade, Tourism and Enterprise meeting with GFG Alliance: FOI review

Information requested

All internal and external correspondence within and sent or received by the Scottish Government including attached documents, meeting handouts, memos, briefings to ministers, attendee lists, location of meeting, notes, minutes, or OneNote memos, linked to Ivan McKee's meeting with Sanjeev Gupta on August 15, 2022.

"I am writing to you to request an internal review of this decision. I do not believe the exemptions applied apply to all the information redacted, and where they do, the public interest in the information redacted is overwhelmingly in favour of disclosure. This is due to the significant public interest in transparency and, in the specific case of the dealings with GFG Alliance, value for taxpayer money and the accountability of politicians."

Response

I have been asked to look at your request afresh, to decide whether the original response should be confirmed, with or without modifications, as appropriate, or that a fresh decision should be substituted. I can confirm that I was not involved in the handling or decision-making around the original response. I have considered this case again, and I have conducted a comprehensive review of the response, and the reasons behind withholding the requested information. I have concluded that the original decision should be upheld with modifications and as such some additional information contained within the documents held in scope has now been released.

I have determined that the application of the exemption at section 33(1)(b) (commercial interests) to some information in the original response was appropriate in most cases, and in the public interest. I am satisfied that if this information were released it would negatively impact the business and potentially damage negotiations, day-to-day operations and other activity. Whilst I recognise that there would be some public interest in release of the information in terms of providing greater openness, I consider that this is outweighed by the public interest in ensuring that private sector partners can share commercially sensitive information with Government with confidence that such information will be handled with due sensitivity.

However, I have decided that a small amount of the information previously withheld under section 33(1)(b) ought in fact to have been provided. That information is included in the revised versions of the release documents attached.

Similarly, I have decided that the application of section 30(b)(ii) (free and frank exchange of views) to some information was appropriate and in the public interest. While the Scottish Government understands the need for transparency as part being an open and responsible Government, Ministers and officials require a necessary and private space to make decisions. This becomes even more important when events with external parties are still ongoing and in an effort to maintain a well-functioning working relationship with companies and external advisors. It is not in the public interest to release information that would prejudice this and deprive the taxpayer of best value for money.

I would also like to confirm that section 36(1) of FOISA (confidentiality in legal proceedings) applies to some the information requested because it is legal advice and disclosure would breach legal professional privilege. Legal information provided in several of these documents was obtained by Scottish Government legal advisors for the purposes of informing Ministers. Particularly as the Scottish taxpayer has an interest in the Lochaber smelter performing well and maintaining efficient operations, as does the Scottish Government, disclosing legal advice while potential legal scenarios are developing would not be in the public interest. FOISA also recognises the need for Ministers and officials to have a private space within which to seek advice and discuss options before reaching a settled public view. Disclosing the content of such advice/discussions will substantially inhibit the free and frank provision of advice and/or exchange of views in the future, particularly if those discussions relate to sensitive issues.

I have determined that the application of the exemption under section 30(c) of FOISA (prejudice to effective conduct of public affairs). This exemption applies to references to the source of legal advice. Revealing the source of the Scottish Government’s legal advice on GFG Lochaber, 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 matters related to the GFG Alliance. This would constitute substantial prejudice to the effective conduct of public affairs in terms of the exemption.

I am also satisfied that the application of 38(1)(b) is robust, being applied to information which is the personal data of a third party. 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.

However, I have decided that a small amount of the information previously withheld under section 38 (1)(b) ought in fact to have been provided. That information is included in the revised versions of the release documents attached.

About FOI

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FOI Review - 202200329605 - information released

File type

11 page PDF

File size

1.4 MB