Annex B: Investment in businesses by Scottish Ministers: Disclosure of information
Disclosure of information: the Freedom of Information (Scotland) Act 2002
1. The Scottish Ministers are subject to the Freedom of Information (Scotland) Act 2002 (FOISA)[1]. It applies to almost any information that the Ministers hold, regardless of its source[2]. If we are asked for information, the requester is entitled to be given it, unless an exemption applies. The exemptions are all set out in FOISA and information cannot be withheld for any other reason. The Scottish Ministers issue a Code of Practice for all public authorities and Part 8 (disclosure of information relating to contracts or procurement processes) is particularly relevant in this context.
2. Generally speaking, if we have information then we will “hold” it for FOISA purposes. This includes information that a third party has given us. We will also hold information if someone else holds it on our behalf – the classic example is information that our external lawyers have so that they can do work for us. It is important to think about this when carrying out searches for information.
3. Good records management can help when dealing with requests for information. We should think carefully about what information we need, why we need it, and how long we need it for. We do not have to provide information that we do not hold, so if it is no longer needed then appropriate records management arrangements will make responding to requests easier. This is particularly true in relation to emails, when many people may have retained copies rather than relying on the version saved in the official record.
4. Proactive publication of information should be considered, taking cognisance of the legal and commercial context and balancing the prospects of the business with the benefit of being transparent to Parliament and taxpayers. Proactive publication is another way that requests for information can be positively managed, because if we have already published the requested information then we can direct the requester to it by way of response.
5. Where we are asked for information, it can only be withheld if a FOISA exemption applies. The main exemptions that you are likely to encounter are:
- section 30(b) free and frank provision of advice/exchange of views for the purpose of deliberation
- section 30(c) substantial prejudice to the effective conduct of public affairs
- section 33(1)(b) substantial prejudice to commercial interests
- section 36(1) legal professional privilege
- section 38(1)(b) personal information of third party
6. Detailed guidance is available on each of these exemptions, both from the FOI Unit and from the Scottish Information Commissioner. It sets out exactly what is required if the exemption is to apply, and strict criteria must be satisfied if an exemption is to be applied. If the criteria are not satisfied, the Scottish Information Commissioner will not uphold our approach and we will ultimately be ordered to release the information. Generic arguments will not satisfy the Commissioner – they must be specific to the information you are considering in each case. It is also worth noting that exemptions very rarely apply to documents in their entirety: we need to focus closely on what information engages the exemption and be discriminating in what we seek to withhold.
7. It is particularly important to be aware that no special status applies to information marked “confidential”, “commercial in confidence” or marked with one of our own security markings. If you think that a confidentiality agreement or non-disclosure agreement may apply to any information that you have been asked for, you should consult the FOI Unit at the earliest opportunity.
8. Nearly all of the exemptions that you are likely to encounter are “qualified” exemptions. This means that, even if the criteria to apply the exemption are satisfied, you have to consider the public interest test. We can only withhold information if the public interest in upholding the exemption outweighs the public interest in disclosing the information. If the public interest is equally balanced, FOISA requires that we disclose.
9. It is important that we can make strong arguments about how the public interest has been assessed and the competing arguments balanced. Again, this has to be specific to the individual circumstances of each request: generic arguments will not be acceptable to the Commissioner.
10. Some factors that may favour disclosure of information are the public interest in:
- understanding how public money has been used
- understanding the investment decisions made by Ministers
- seeing how value for money is achieved
- openness and transparency in government[3]
11. Some factors that may favour withholding information (this can vary according to the exemption that has been applied):
- ensuring that a level playing field in commercial competition is not distorted by placing into the public domain information about a body where comparable information about its competitors is not, thereby affecting its ability to compete
- ensuring that the Ministers’ ability to intervene in future cases is not restricted by expectations arising from their approach in the particular circumstances of a given case
- minimising the overall risk to public funds that have been invested
12. It is also worth noting that the sensitivity of information is likely to change over time, allowing previously withheld information to be made public.
13. Where we are considering information that we have received from a third party, it is good practice to consult them before responding to a request for information. However, it may not be possible to do this while complying with the statutory timescales for response in FOISA. The Ministers’ Code of Practice is clear that this courtesy consultation cannot delay or prevent responding in accordance with the law[4]. It must also be made clear to consultees that they do not have a veto on disclosure and that the decision will be one for the Ministers alone, although we will take their views into account. If we consult effectively, the responses from third parties can be particularly helpful in explaining why a particular exemption applies and what the harm resulting from disclosure would be.
Page Updated: August 2019
[1] They are also subject to the parallel regime that applies to “environmental information” as set out in the Environmental Information (Scotland) Regulations 2004. If you are unsure whether information is environmental information or not (it is interpreted widely) the FOI Unit can offer a view.
[2] The exception is information that we have in confidence from the UK Government (FOISA s. 3(2)(a)(ii)), but this is unlikely to be relevant in this context.
[3] It being a particular commitment of the First Minister (referenced subsequently in PfG) to lead the most open and transparent government the people of Scotland have ever had.
[4] See Part 7.