Decision Notice 010/2024: Lochaber Smelter: business case/plan, advice and yearly breakdown
Applicant:
Authority: Scottish Ministers
Case Ref: 202101273
Summary
The Applicant asked the Authority for a range of information about the Lochaber smelter. The Authority disclosed some information, and withheld the remainder under a number of exemptions in FOISA. The Commissioner investigated and found that the Authority had generally complied with FOISA in responding to the request, but required the Authority to disclose further information.
Relevant statutory provisions
Freedom of Information (Scotland) Act 2002 (FOISA) sections 1(1), (2) and (6) (General entitlement); 2(1)(b)
(Effect of exemptions); 30(c) (Prejudice to effective conduct of public affairs); 36(1) (Confidentiality); 47(1)
and (2) (Application for decision by Commissioner)
The full text of each of the statutory provisions cited above is reproduced in Appendix 1 to this decision. The
Appendix forms part of this decision.
Background
1. On 11 July 2021, the Applicant made a request for information to the Authority. He asked for:
(i) Any business plan, business case or document setting out the economic benefit of a deal between GFG
Alliance and the Authority, received by the Authority in 2015, 2016 or 2017
(ii) The unredacted advice provided to the Authority from Ernst & Young around the Lochaber Guarantee
(iii) The detail of the advice provided by Ernst & Young to the Authority on the pricing of the charge to GFG
Alliance for the Guarantee.
(iv) Since 2016, the quarterly or yearly breakdown (i.e. Q1 2017: £2m) of the total amount expected to be paid
to the Authority by GFG Alliance over the 25 years of the Guarantee
(v) Since 2017, the quarterly or yearly breakdown (i.e. Q1 2017: £2m) of the total amount actually be paid to
the Authority by GFG Alliance from Q1 2016 to date.
2. The Authority responded on 10 August 2021, refusing the request in terms of section 12(1) of FOISA as it
considered the cost of complying would exceed the specified limit of £600.
3. On 9 September 2021, the Applicant wrote to the Authority requesting a review of its decision. The
Applicant stated that he was dissatisfied with the decision because the request was sufficiently narrow to not
engage the cost limit and because the Authority had not provided any evidence to justify its response or set out
the indicative costs for providing the requested information.
4. The Authority notified the Applicant of the outcome of its review on 7 October 2021, concluding that the
original decision should be overturned. The Authority disclosed five documents in redacted form and also
referred to information previously published online which fell within the scope of the request. The Authority
relied on sections 25, 33(1)(b) and 38(1)(b) of FOISA to withhold information falling within the scope of the request.
5. On 11 November 2021, the Applicant wrote to the Commissioner, applying for a decision in terms of section
47(1) of FOISA. The Applicant stated that he was dissatisfied with the outcome of the Authority’s review because
he:
- did not consider section 33 of FOISA applied to the withheld information because
- it had been applied inconsistently, with aspects of confidential information of other companies published
while GFG’s projections are kept private
-the plans for the alloy wheel plant at Lochaber were scrapped, meaning the likelihood of substantial
prejudice is nil and there is no genuine link between disclosure of the withheld information and the harm claimed
- in any case, the deal struck between GFG Alliance, Liberty Steel and the Authority is of significant public interest, which favoured disclosure of the withheld information.
Investigation
6. The Commissioner determined that the application complied with section 47(2) of FOISA and that he had the power to carry out an investigation.
7. The Authority was notified in writing that the Applicant had made a valid application. The Authority was
asked to send the Commissioner the information withheld from the Applicant. The Authority provided the
information and the case was subsequently allocated to an investigating officer.
8. Section 49(3)(a) of FOISA requires the Commissioner to give public authorities an opportunity to provide
comments on an application. The Authority was invited to comment on this application and to answer specific
questions. These related to the Authority’s justification for withholding the information requested under the
exemptions in sections 25, 33(1)(b) and 38(1)(b) of FOISA.
9. During the investigation, the Authority informed the Commissioner that it wished to withdraw its reliance
on section 33(1)(b) of FOISA to withhold the majority of the information, and instead wished to rely on section
30(c) to withhold this information. The Authority also identified specific information within two documents that
it considered solely exempt under sections 33(1)(b) (document 2) and 36(1) (document 10) of FOISA.
10. The Authority notified the Applicant of its change of position and the Applicant was given the opportunity
to provide comments on the Authority’s decision to now rely on sections 30(c) and 36(1) of FOISA to withhold the information requested.
11. During the investigation, the Applicant informed the Commissioner that the Authority had disclosed to him
an unredacted copy of document 9. The Authority confirmed that this was an error, and that the redactions
previously made to the document still applied at the date of the review response (although it now wished to rely
on section 30(c) of FOISA to withhold the information, rather than section 33(1)(b)). However, the Authority
subsequently disclosed document 9 in unredacted form again to the Applicant.
12. The Commissioner asked the Authority, during the investigation, to confirm that it had disclosed
information to the Applicant in line with the Schedule of Documents it had provided to the Commissioner. The
Authority subsequently disclosed to the Applicant an unredacted copy of document 6 and redacted copies of
documents 7, 8 and 10, as it could not locate a record of previous disclosure.
13. During the investigation, the Applicant confirmed that he was content to exclude from consideration the
Authority’s reliance on sections 25(1) and 38(1)(b) of FOISA to withhold information. Consequently, the
Commissioner has not considered these matters further.
Commissioner’s analysis and findings
14. The Commissioner has considered all of the submissions made to him by the Applicant and the Authority.
Background: Lochaber Smelter Guarantee
15. The Authority provided detailed background information, the following parts of which may be helpful in
explaining the background of the Lochaber Smelter Guarantee:
16. The Lochaber aluminium complex in Fort William is the UK’s last remaining aluminium smelter, the operation
of which is a key component of Scotland’s industrial capability and a major source of employment in the West
Highlands.
17. When Rio Tinto decided to review its Lochaber operations in 2016, the smelter faced the prospect of
closure, endangering over 300 jobs in total (direct, indirect and induced). The Authority’s focus at the time was
to avoid the fragmentation of the Lochaber complex, to secure the long-term viability of the smelter and to
realise further industrial and employment opportunities on site.
18. In September 2016, as part of the Authority’s wider overall objective to preserve jobs, protect the
economy and sustain the metals industry in Scotland, it indicated a willingness to support any purchaser who
would retain the smelter and associated hydro-power scheme together, and make the necessary commitment to
significant investment in the development of the Lochaber assets. The Authority’s offer included the potential to
guarantee the power purchase obligations of the aluminium smelter and was made known on an even-handed
basis to all short-listed bidders via the vendor (Rio Tinto).
19. To deliver its objective for the site, the Authority is standing behind a portion of the power purchase
obligations of the aluminium smelter operator (Alvance British Aluminium Limited (SmelterCo)) in the event that it
cannot pay for the power it is contracted to take from the hydro-electric power station operator (Simec Lochaber
Hydropower 2 Limited (HydroCo)). Both companies are part of the GFG Alliance (GFG) which is a collection of
global businesses and investments.
20. The commercial guarantee arrangement (the Guarantee) was entered into in December 2016 by the Authority,
SmelterCo and HydroCo, and guarantees over a 25 year term that the Authority will pay for a percentage of the
power that SmelterCo is contracted to purchase from HydroCo in the event that SmelterCo is unable to do so.
21. The nominal value of the Authority’s contingent liability on day one of the Guarantee was £586 million
(i.e. the total amount of payments guaranteed by the Authority across the 25 year agreement), and is the largest
industrial guarantee ever agreed by the Authority.
22. In return for the Guarantee, the Authority receives a commercial guarantee fee (the Fee) from GFG.
23. In March 2021, GFG’s major providers of working capital and investment finance (Greensill Capital (UK)
Limited and Greensill Capital Management Company (UK) Limited (together “Greensill”)) entered administration.
24. The Authority submitted that should the Lochaber guarantee be called in and if other recovery options
prove ineffective, it would have an option to take ownership of the business assets at Lochaber and trade these
assets (directly or through lease arrangements) with the intent of satisfying the ongoing payment obligations
under the Power Purchase Agreement (PPA) or alternatively seek to dispose of the assets through a managed sales
process.
25. The Authority submitted that information within the material remained current and could negatively impact
its ability to operate the assets on effective commercial terms and, potentially, inhibit any sale process to the
detriment of the public purse if the information was disclosed prematurely.
The Authority’s interests
26. In addition to the background information above, the Authority explained that, as a result of its legal
obligations arising from the Guarantee, it had a significant and specific financial and economic interest in the
operation of the smelter to which the information related. In addition, it had an overarching general interest in
the original objectives of the proposal, namely the retention of jobs and the support of the metals industry in
Scotland.
27. The Authority acknowledged that the Commissioner had previously indicated in Decision 144/2021 that he
did not consider the Authority to be a commercial actor in respect of Scotland’s energy sector, but that it may
have other economic interests in relation to the smelter.
28. The Authority considered that its commercial, economic and financial interests in respect of the Guarantee
were manifest and quantifiable, and information within the material remained current. It also submitted that
there was considerable uncertainty with respect to any future scenario involving the smelter, the loss of which
could materially impact upon the local regional economy. It noted that, during the 18 months since the Greensill
collapse, GFG and its primary shareholder, Sanjeev Gupta, had sought to defend and engage in legal action across
multiple jurisdictions in order to preserve operations.
Information disclosed during the investigation
29. Section 1(1) of FOISA provides that a person who requests information from a Scottish public authority
which holds it is entitled to be given that information by the authority, subject to qualifications which, by
virtue of section 1(6) of FOISA, allow Scottish public authorities to withhold information or charge a fee for it.
The qualifications contained in section 1(6) are not applicable in this case.
30. The information to be given is that held by the authority at the time the request is received, as defined
in section 1(4).
31. The Authority identified and provided to the Commissioner copies of ten documents it considered fell
within scope of the request. The documents ranged in size from four pages to 109 pages and consisted of letters,
presentations and reports dating between 22 August 2016 to 23 October 2017.
Documents 6, 7, 8 and 10
32. The Authority provided to the Commissioner copies of ten documents it considered fell within the scope of
the Applicant’s request, with an accompanying Schedule of Documents specifying what information it considered
exempt within those documents.
33. The Commissioner asked the Authority to confirm whether it had disclosed documents 6, 7, 8 and 10 to the
Applicant, as it was not clear that it had.
34. The Authority explained that it did not hold a record of previous disclosure and arranged for those
documents to be disclosed to the Applicant.
35. As the Authority disclosed those documents to the Applicant during the investigation and was unable to
provide satisfactory evidence that it disclosed them earlier in response to the request, the Commissioner must
find that the Authority failed to comply with section 1(1) of FOISA.
Information outwith scope of request
36. The Commissioner has considered in detail the terms of the Applicant’s request, together with the
information provided by the Authority.
37. The Commissioner’s view is that the information on pages 37 to 41 of document 2 and part of a sentence on
page 2 of document 3 fall outwith the scope of the Applicant’s request, and, consequently, he has not considered
that information further.
38. As the Authority solely relied upon section 33(1)(b) of FOISA to withhold some of the information on page
38 of document 2, the Commissioner will therefore not reach a finding on section 33(1)(b) in relation to this
application.
Section 30(c) – Prejudice to effective conduct of public affairs
39. Section 30(c) of FOISA exempts information if its disclosure "would otherwise prejudice substantially, or
be likely to prejudice substantially, the effective conduct of public affairs". This exemption is subject to the
public interest test in section 2(1)(b) of FOISA.
40. The use of the word "otherwise" distinguishes the harm required from that envisaged by the exemptions in
sections 30(a) and (b). This is a broad exemption and the Commissioner expects any public authority citing it to
show what specific harm would (or would be likely to) be caused to the conduct of public affairs by disclosure of
the information, and how that harm would be expected to follow from disclosure.
41. The standard to be met in applying the tests contained in section 30(c) is high: the prejudice in question
must be substantial and therefore of real and demonstrable significance. The Commissioner expects authorities to
demonstrate a real risk or likelihood of substantial prejudice at some time in the near (certainly foreseeable)
future, not simply that such prejudice is a remote or hypothetical possibility. Each request should be considered
on a case by case basis, taking into consideration the content of the information and all other relevant
circumstances (which may include the timing of the request).
42. The Authority relied upon section 30(c) to withhold information in the majority of documents. In document
10, the Authority withheld information under section 30(c) (including the source of legal advice) and it also
withheld information relating to legal advice under section 36(1) (which is considered separately in the
decision).
The Authority’s submissions on section 30(c)
43. The Authority submitted that it was essential for it to have a productive relationship with companies like
GFG, which run businesses of national and local importance to Scotland. As the Lochaber smelter is a significant
employer in the local area, the Authority had a significant interest in the business through the Guarantee.
44. The Authority provided two key reasons for withholding the majority of the information under the exemption
in section 30(c) of FOISA, as follows:
Point (a) – Disclosure would weaken the Authority’s ability to negotiate guarantee terms
45. The Authority submitted that it was likely that external lenders will be involved in situations where it
is providing guarantees to support businesses. It would be in these lenders’ interests to negotiate the most
generous guarantee terms possible, thereby passing risk to the Authority (which would be to the detriment of the
Authority’s interests were such a guarantee more likely to be called up). Disclosure would enable future lenders
to form views about the Authority’s likely appetite for risk and on how it takes decisions on these matters, and
would allow them to use this as part of its negotiation strategy. The Authority believed the process of
benchmarking one guarantee against another would ultimately be detrimental to its interests.
Point (b) – Disclosure would make distressed businesses less likely to engage with Authority support
46. The Authority submitted that businesses are extremely hesitant to consider financial intervention
sponsored by it, or its Agencies, due to the risk of this becoming public knowledge, as this would alert customers
and suppliers to the fact that the business was utilising last resort funding to continue to trade. This, in
turn, would adversely affect the business as its customers and suppliers would be less willing to deal with it due
to fear of wasted costs (e.g. where the business was unable to pay for materials ordered), leading to further
difficulties in trading.
47. In the Authority’s view, disclosure would exacerbate the issue by underscoring not only that fact, but
also the underlying basis on which decisions are made about sensitive business operations and situations, and this
risk was not one that arose where a business secured support from a third party which was not a Scottish public
authority. The Authority also believed this would heighten concerns about seeking support from the Authority,
making such support less effective and thereby prejudicing its own commercial interests.
48. The Authority argued that it must be able to assure businesses that sensitive information about their
financial position and future plans will not be released as a result of their involvement with the Authority. In
the Authority’s view, maintenance of trust was important to allow it to engage with businesses in the best
interests of Scotland, with the ultimate aim of preserving employment and growing the economy. It believed that
disclosure of the information would jeopardise its ability to work in partnership with commercial actors such as
GFG in future.
49. In terms of the source of the legal advice, the Authority explained that it was under an obligation set
out in the Ministerial Code to ensure that its decisions are informed by appropriate analysis of the legal
considerations.
50. The Authority stated that the exemption applied because release of the information would breach the long-
standing Law Officer Convention which prevents it from revealing whether Law Officers have or have not been asked
to provide legal advice on any matter.
51. The Authority noted that the Ministerial Code states at paragraph 2.38 that the Authority must not divulge
who provided the advice (whether it is from the Law Officers or anyone else).
52. The Authority considered that the Law Officer Convention has been given particular recognition in FOISA
through section 29, subject to it being outweighed by greater considerations of public interest. The Authority
submitted that breach of the Law Officer Convention itself substantially prejudices the effective conduct of
public affairs.
53. Additionally, the Authority noted that the courts have found that Parliament intended real weight should
be afforded to the Law Officers’ Convention, and that the general considerations of good government underlining
the history and nature of the convention are capable of affording weight to the interest in maintain an exemption
even in the absence of evidence of particular damage (see HM Treasury V IC [2009] EWHC 1811(Admin) [2010] QB 56 ).
54. The Authority also submitted that revealing whether or not Law Officers had been asked to advise on this
matter would encourage people to draw conclusions regarding the importance placed by government on the subject.
55. The Authority explained that this would significantly harm the effective conduct of public affairs by
placing undue pressure on it and its officials in future when it is considering seeking legal advice and the
suitability of who should be asked to provide that advice, in particular when considering seeking advice from the
Law Officers.
The Applicant’s submissions on section 30(c)
56. The Applicant noted that the plans for the alloy wheel plant at Lochaber had been scrapped by GFG Alliance
in late 2020, with a planning application for a recycling plant on the same land as the alloy wheel plant
submitted in May 2021.
57. The Applicant explained that he therefore did not consider that disclosure of the withheld information
presented a likely or substantially prejudicial risk to the effective conduct of public affairs.
58. The Applicant stated that the Authority has provided no evidence of this risk and that it was clear to him
that the Authority’s change of position was an admission that the previous exemptions did not apply and that it
was simply an attempt to block release of the information requested, rather than a legitimate reason for
withholding the information.
59. The Applicant submitted that much of the Authority’s submissions are based on the hypothetical impact of
disclosure and that the public interest in transparency and accountability, particularly in the case of the deal
in question, is much stronger than the public interest in maintaining the exemption.
The Commissioner’s view on section 30(c)
60. Information can only be exempt under section 30(c) of FOISA if its disclosure would prejudice
substantially, or be likely to prejudice substantially, the effective conduct of public affairs.
61. The Commissioner must consider the withheld information with regard to the circumstances at the time of
the Authority’s review outcome. Given the sensitivity of the information and the circumstances surrounding it,
the Commissioner is limited in the reasoning he can set out in this Decision Notice.
62. The Commissioner notes that the main focus of the withheld information is financial arrangements and
discussions relating to a proposed alloy wheel facility, which was shelved in November 2020 , which were, at the
date of the Authority’s review response, relatively recent.
63. For example, at the date of the Authority’s review response, the financial viability of the companies
involved (Greensill and CFG) had changed considerably, but the Authority would still have to pay for 80% of the
power that SmelterCo is contracted to purchase from HydroCo in the event that SmelterCo is unable to do so.
64. Having considered the nature and content of the withheld information, together with the Authority’s
submissions, the Commissioner accepts that disclosure of some of the withheld information would be likely to cause
substantial prejudice to the effective conduct of public affairs. The Commissioner cannot expand on his reasoning
here, as to do so would reveal the information being withheld.
65. Consequently, the Commissioner is satisfied that the Authority was entitled to apply the exemption in
section 30(c) of FOISA to the majority of the withheld information.
66. However, for some of the withheld information, the Commissioner considers that it either has been
published or will be shortly or that it is generic in nature and does not adequately relate to the ongoing
commercial interests of the companies identified to the extent that section 30(c) of FOISA can be engaged.
67. Consequently, the Commissioner finds that the Authority incorrectly withheld some information under
section 30(c) of FOISA. As he does not accept section 30(c) applies to that information, he is not required to
consider the public interest in section 2(1)(b) of FOISA for that information.
68. The Commissioner will provide a marked-up copy of the withheld information to the Authority indicating
what information he considers is not exempt under section 30(c) and which should therefore be disclosed to the
Applicant. (As the Authority has now disclosed document 9 to the Applicant in unredacted form, the Commissioner will not require the Authority to take any action regarding that document.)
Public interest test
69. The exemption in section 30(c) is subject to the public interest test in section 2(1)(b) of FOISA. The
Commissioner must therefore go on to consider whether, in all the circumstances of the case, the public interest
in disclosing the information is outweighed by that in maintaining the exemption.
The Authority's submissions on the public interest – section 30(c)
70. The Authority recognised the public interest in disclosure, as part of an open, transparent and
accountable government and to inform public debate. It also recognised the public interest in the aluminium
smelter complex, and in how the Authority works with companies such as GFG when public funds are involved.
71. However, given the importance of the smelter to Scotland, the Authority believed this was outweighed by
the public interest in protecting GFG’s trust in its relationship with the Authority.
72. The Authority argued that it was of vital importance to Scotland and its people that it was able to
intervene to protect jobs and the wider economy. When this involved a guarantee, such as this one, the Authority
believed the public interest lay in protecting certain sensitive information to allow future interventions.
73. The Authority submitted that, ultimately, the aim of this intervention was to protect jobs, and there was
no public interest in disclosing information that would jeopardise such future action.
74. The Authority believed the public interest lay in protecting the interests of those employed within the
Lochaber smelter business (circa 200 people), given its importance not only to those employees, but also to the
wider economy of the local area.
75. The Authority also recognised that there is some public interest in disclosing the source of legal advice
in order to promote transparency and inform public debate.
76. However, the Authority submitted that the public interest does not in this particular case outweigh the
public interest in maintaining the Law Officer Convention, as disclosing the source of legal advice would not in
any way add to the public’s understanding of the issues that are relevant in relation to the Authority’s policy
position on the Lochaber smelter and related matters.
The Applicant's submissions on the public interest – section 30(c)
77. The Applicant submitted that the key question around the Lochaber smelter is whether the deal struck by
the Authority with GFG Alliance was sound decision making from a taxpayer value-for-money point of view.
78. The Applicant explained that, in this context, the public interest in discovering whether that is the case
is obvious: this was a multi-million financial commitment and the political and financial risks of such a decision are clear in how the rescue of companies such as Ferguson Marine, Prestwick Airport, Bifab and Dalzell Steelworks have developed.
79. The Applicant submitted that full transparency is therefore overwhelming and, without disclosure of the
withheld information, there is no way for the public to establish whether the deal at Lochaber is in the public
interest and there is no accountability.
80. The Applicant also explained that the history of GFG Alliance further increased the public interest in
disclosure of the withheld information. The Applicant noted that GFG’s recent history raised question marks
about the Authority’s decision to go into business with it and, while it may well have been the correct decision, it
is impossible to judge this without all of the facts.
The Commissioner’s view on the public interest – section 30(c)
81. The Commissioner has taken account of all of the relevant submissions from both parties, together with the
withheld information in this case. He is required to balance the public interest in disclosure of the information
requested against the public interest in maintaining the exemption. The public interest, in the context of FOISA,
should be considered as “something which is of serious concern and benefit to the public”.
82. As rehearsed above, the Commissioner has already accepted that disclosure of the majority of the withheld
information would, or would be likely to, cause substantial prejudice to the effective conduct of public affairs.
83. Given the significant size of the Lochaber Smelter Guarantee and those potentially affected by the
circumstances surrounding it, the Commissioner accepts that there is clear and substantial public interest in
understanding the finer details of the Guarantee and discussions that the Authority had with GFG and other
companies.
84. However, the Commissioner recognises that this must be carefully balanced against any impact that
disclosure of the withheld information would have had – at the time when the Authority issued its review outcome –
with regard to the Lochaber smelter, the Guarantee itself (underwritten by the Authority) and what the likely
circumstances might be were the Guarantee to be called in.
85. The Commissioner acknowledges that, were circumstances to arise requiring the Guarantee to be called in,
this would clearly impact the parties involved (including the Authority), the economy of the local area (and the
wider Scottish economy) and the jobs of those individuals employed at the smelter and associated businesses, both
directly and indirectly.
86. The Commissioner recognises that such a situation could lead to a number of unwanted circumstances
presenting themselves, for example job losses, the requirement for a new agreement to be drawn up or entered into
by the Authority, and a reduction in crucial commercial information being provided by businesses to the Authority
which would inhibit the Authority’s ability to take fully informed decisions and secure best value for public
money. Such circumstances would clearly impact on the Authority’s position with regard to its ability to
effectively conduct its public affairs, and that would not be in the public interest.
87. In terms of the source of the legal advice, the Commissioner acknowledges that there is a general public
interest in transparency in the conduct of public affairs and that the advice in question relates to a deal of
significant public interest.
88. While the Commissioner recognises that there is some public interest in knowing when advice was sought and
given, he does not accept that it follows that there is a strong public interest in disclosing who provided the
advice.
89. On balance, therefore, the Commissioner is of the view that the public interest in withholding the
remaining information outweighs the public interest in disclosing it.
90. The Commissioner therefore finds that the Authority was entitled to withhold the information he has found
to be exempt under section 30(c) of FOISA.
Section 36(1) – confidentiality of communications
91. Section 36(1) of FOISA exempts from disclosure information in respect of which a claim of confidentiality
of communications could be maintained in legal proceedings. One type of communication covered by this exemption
is that to which legal advice privilege, a form of legal professional privilege, applies.
92. Legal advice privilege covers communications between lawyers and their clients in the course of which
legal advice is sought or given. For the exemption to apply to this particular type of communication, certain
conditions must be fulfilled:
(i) the information must relate to communications with a professional legal adviser, such as a solicitor or
advocate;
(ii) the legal adviser must be acting in their professional capacity; and
(iii) the communications must occur in the context of the legal adviser's professional relationship with their
client.
93. Information cannot be privileged unless it is also confidential. It must be information in respect of
which a claim to confidentiality of communications could be maintained in legal proceedings. The claim must be
capable of being sustained at the time the exemption is claimed: the information must possess the quality of
confidence at that time, and so cannot have been made public, either in full or in a summary substantially
reflecting the whole.
The Authority’s submissions on section 36(1)
94. The Authority explained that the withheld information (consisting of a single paragraph of text in
document 10) summarises legal advice it had received as part of the presentation and consideration of options for
policy actions, leading to the adoption of the Authority’s legal position. The Authority stated that disclosure
would therefore reveal the substance of the legal advice it had received and undermine the consideration of
options.
95. The Authority submitted that disclosure of the withheld information would breach legal professional
privilege by divulging information about the points being considered by lawyers, the extent of their comments and
the issues being flagged up for further consideration.
96. The Authority therefore considered that all of the necessary conditions for legal advice privilege to
apply are satisfied and stated that the legal advice had only been shared with limited relevant employees within
the Authority and with Ernst & Young in order that they could provide further advice.
The Commissioner’s view on section 36(1)
97. Having considered the content of the information withheld under section 36(1) of FOISA and the
circumstances in which it was created, the Commissioner accepts that it meets the conditions for legal advice
privilege to apply.
Public interest test
98. The exemption in section 36(1) is a qualified exemption, which means that it is subject to the public
interest test set out in section 2(1)(b) of FOISA. This means that exemption can only be upheld if the public
interest in disclosing the information is outweighed by the public interest in maintain the exemption.
The Authority’s submissions about the public interest – section 36(1)
99. The Authority recognised that there is a strong public interest in its involvement in the Lochaber smelter
and it acknowledged that the disclosure of the withheld information would be likely to contribute to openness and
transparency in government, which there was also a public interest in.
100. However, the Authority did not consider that those public interest arguments were sufficiently compelling
to outweigh the public interest in maintaining the right to legal professional privilege in order to ensure
confidentiality of communications.
101. The Authority submitted that it remains important in all cases that lawyers can provide free and frank
legal advice which considers and discusses all issues and options without fear that advice may be disclosed and,
potentially, be taken out of context.
102. The Authority explained that, in areas like this, which are the subject of public scrutiny, an expectation
that legal advice would be released would inevitably lead to the legal advice being much more circumspect and
therefore less effective.
103. The Authority further submitted that there is a strong public interest in protecting the confidentiality
of this information in order to ensure that it is able to discuss and take policy decisions in full possession of
thorough and candid legal advice, which ensures that it can take decisions in a fully-informed legal context,
having received legal advice in confidence as any other client would.
The Applicant's submissions about the public interest – section 36(1)
104. The Applicant accepted the information withheld under this exemption was likely to be legal advice, but
considered that there is a strong public interest in its disclosure due to the nature of the allegations around
the deal (namely that it may breach state aid rules) and because disclosure would potentially aid public
understanding and debate around the issue.
The Commissioner's view on the public interest – section 36(1)
105. As the Commissioner has noted in a number of previous decisions, the courts have long recognised the
strong public interest on maintaining the right to confidentiality of communications between legal adviser and
client on administration of justice grounds.
106. In a freedom of information context, the strong inherent public interest in maintaining legal professional
privilege was emphasised by the High Court (of England and Wales) in the case of Department for Business,
Enterprise and Regulatory Reform v Information Commissioner and O'Brien [2009] EWHC 164 (QB) . Generally, the
Commissioner will consider the High Court's reasoning to be relevant to the application of section 36(1) of FOISA.
107. The Commissioner accepts that there is a considerable, in-built, public interest in maintaining the
ability of the Authority to receive full, unhindered legal advice.
108. The Commissioner acknowledges that there will be occasions where the significant in-built public interest
in favour of withholding legally privileged communications may be outweighed by the public interest in disclosing
the information. For example, disclosure may be appropriate where (the list is not exhaustive):
- the privileged material discloses wrongdoing by/within an authority
- the material discloses a misrepresentation to the public of advice received
- the material discloses an apparently irresponsible and wilful disregard of advice
- the passage of time is so great that disclosure cannot cause harm.
109. Having examined the withheld information, while the Commissioner accepts that the contents of the advice
would be of interest to the Applicant and to the general public, he does not consider that any of the above
categories would apply.
110. The Commissioner accepts that there is a public interest in the subject matter of the advice and its
disclosure in terms of accountability and transparency, particularly given the significant expenditure of public
money.
111. However, the Commissioner must take account of the important public interest in legal professional
privilege itself and the public interest in allowing public authorities to obtain confidential legal advice.
112. The Commissioner accepts that there is a strong public interest in a Scottish public authority being able
to receive full, unhindered legal advice. Without such comprehensive advice being available to Authority, its
ability to come to fully-formed decisions would be restricted, which would not be in the public interest.
113. On balance, and after careful consideration, the Commissioner does not find the public interest in
disclosure of this information is sufficiently compelling to outweigh the strong public interest in maintaining
the confidentiality of communications between legal adviser and client.
114. The Commissioner is therefore satisfied that the Authority correctly withheld this information under
section 36(1) of FOISA.
Decision
The Commissioner finds that the Authority partially complied with Part 1 of the Freedom of Information (Scotland)
Act 2002 (FOISA) in responding to the information request made by the Applicant.
The Commissioner finds that, by relying upon sections 30(c) and 36(1) of FOISA to withhold information in some
documents, the Authority complied with Part 1.
However, the Authority failed to comply with section 1(1) of FOISA by disclosing documents 6, 7, 8 and 10 during
the investigation and by withholding information in some documents under section 30(c) of FOISA.
The Commissioner therefore requires the Authority to disclose the information in the marked up documents by
Monday, 4 March 2024.
Appeal
Should either the Applicant or the Authority wish to appeal against this decision, they have the right to appeal
to the Court of Session on a point of law only. Any such appeal must be made within 42 days after the date of
intimation of this decision.
Enforcement
If the Authority fails to comply with this decision, the Commissioner has the right to certify to the Court of
Session that the Authority has failed to comply. The Court has the right to inquire into the matter and may deal
with the Authority as if it had committed a contempt of court.
David Hamilton
Scottish Information Commissioner
17th January 2024
Appendix 1: Relevant statutory provisions
Freedom of Information (Scotland) Act 2002
1 General entitlement
(1) A person who requests information from a Scottish public authority which holds it is entitled to be given
it by the authority.
(2) The person who makes such a request is in this Part and in Parts 2 and 7 referred to as the “applicant.”
…
(6) This section is subject to sections 2, 9, 12 and 14.
2 Effect of exemptions
(1) To information which is exempt information by virtue of any provision of Part 2, section 1 applies only to
the extent that –
…
(b) in all the circumstances of the case, the public interest in disclosing the information is not outweighed
by that in maintaining the exemption.
…
30 Prejudice to effective conduct of public affairs
Information is exempt information if its disclosure under this Act-
…
(c) would otherwise prejudice substantially, or be likely to prejudice substantially, the effective
conduct of public affairs.
…
36 Confidentiality
(1) Information in respect of which a claim to confidentiality of communications could be maintained in legal
proceedings is exempt information.
…
47 Application for decision by Commissioner
(1) A person who is dissatisfied with -
(a) a notice under section 21(5) or (9); or
(b) the failure of a Scottish public authority to which a requirement for review was made to give such a
notice.
may make application to the Commissioner for a decision whether, in any respect specified in that application, the request for information to which the requirement relates has been dealt with in accordance with Part 1 of this Act.
(2) An application under subsection (1) must -
(a) be in writing or in another form which, by reason of its having some permanency, is capable of being used
for subsequent reference (as, for example, a recording made on audio or video tape);
(b) state the name of the applicant and an address for correspondence; and
(c) specify –
(i) the request for information to which the requirement for review relates;
(ii) the matter which was specified under sub-paragraph (ii) of section 20(3)(c); and
(iii) the matter which gives rise to the dissatisfaction mentioned in subsection (1).
