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Decision 062/2023

Decision 062/2023: Lochaber Smelter:  Project Boots marketing presentation and marketing material

Authority:  Scottish Ministers
Case Ref:  202200411

Summary

The Applicant asked the Authority for the marketing presentation “Project Boots Long Dated Secured Financing Guaranteed by the Scottish Government”, and any other marketing material in connection with Project Boots bonds.  The Authority disclosed some information in the marketing presentation and withheld the remainder.  The Authority stated that it did not hold any other marketing material.

Following an investigation, the Commissioner found that the Authority had correctly withheld information in the marketing presentation on the basis that disclosure would, or would be likely to, prejudice substantially the effective conduct of public affairs.  He was also satisfied that the Authority did not hold the other marketing material requested.

Relevant statutory provisions

Freedom of Information (Scotland) Act 2002 (FOISA) sections 1(1), (2), (4) and (6) (General entitlement); 2(1)(b) (Effect of exemptions); 17(1) (Notice that information is not held); 30(c) (Prejudice to effective conduct of public affairs); 33(1)(b) (Commercial interests and the economy); 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 10 February 2022, the Applicant made a request for information to the Authority, relating to the Lochaber smelter.  They asked for:

(i) The marketing presentation “Project Boots Long Dated Secured Financing Guaranteed by the Scottish Government”, prepared by Morgan Stanley and dated November 2016.

(ii) Any/all other marketing material held by the Scottish Government in connection with Project Boots bonds (e.g. prospectus, listing particulars, information memorandum, diligence reports etc.).

2. The Authority responded on 10 March 2022.  For part (i) of the request, it partially disclosed some of the information in the marketing presentation, and withheld the remainder under the exemption in section 33(1)(b) of FOISA, on the basis that disclosure would, or would be likely to, prejudice substantially the commercial interests of the commercial entities involved.  The Authority believed that the public interest in transparency was outweighed by the risk to the companies’ commercial interests.  For part (ii), the Authority informed the Applicant, in terms of section 17(1) of FOISA, that it did not hold the information requested.

3. On 10 March 2022, the Applicant wrote to the Authority requesting a review of its decision.  The Applicant stated that they were dissatisfied with the decision because, in their view, the response was incomplete (they believed more information was held than had been provided), the exemption claimed did not apply, the explanations provided lacked precision, and the public interest test had not been properly carried out (and favoured disclosure).

4. The Authority notified the Applicant of the outcome of its review on 8 April 2022, upholding its original decision with modifications.  For part (i) of the request, the Authority disclosed some further information in the marketing presentation and continued to withhold the remainder under section 33(1)(b) of FOISA for the reasons previously stated.  The Authority stated that disclosure of the remaining withheld information would negatively impact the business and potentially damage negotiations, day-to-day operations and other activity.  Given the importance of the business to the economy of the West Highlands and beyond, it considered there was no public interest in disclosing information that would prejudice this.

5. On 8 April 2022, the Applicant wrote to the Commissioner, applying for a decision in terms of section 47(1) of FOISA.  The Applicant stated that they were dissatisfied with the outcome of the Authority’s review because they disagreed that the exemption applied.  In their view, the marketing document was not commercially sensitive and the public interest favoured disclosure.  They also believed more in-scope information was held than had been provided.

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. On 9 May 2022, 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. The Applicant provided submissions to the Commissioner on 20 July 2022, setting out why they believed disclosure of the information requested was in the public interest.

9. On 20 October 2022, the Applicant wrote to the Commissioner again, commenting that they believed the marketing document requested was in the public domain, although they had been unable to access a copy.

10. 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 focussed on the Authority’s justification for withholding some of the information requested in part (i) under the exemption in section 33(1)(b) of FOISA (including the Applicant’s claim that the information was in the public domain), and whether it held any information falling within the scope of part (ii).

11. On 9 December 2022, the Authority informed the Commissioner that it now wished to withdraw its reliance on section 33(1)(b) for the information originally considered to be commercially sensitive and now, instead, wished to apply section 30(c) to that same information.  It provided submissions in support of its reliance on section 30(c).

12. The Authority notified the Applicant of its change of position on 16 December 2022.

13. Following consideration of the Authority’s submissions, the Investigating Officer asked the Authority to provide submissions on its reliance on section 30(c) for part (i), and on section 17(1) for part (ii).  The Authority provided these on 21 December 2022 and 15 February 2023.

14. On 2 January 2023, the Applicant provided further submissions to the Commissioner, on the Authority’s decision to now rely on section 30(c) of FOISA.

Commissioner’s analysis and findings

15. The Commissioner has considered all of the submissions made to him by the Applicant and the Authority.

Background:  Lochaber Smelter Guarantee

16. The Authority provided detailed background information in its submissions, the following parts of which may be helpful in explaining the background of the Lochaber Smelter Guarantee:

  • 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.
  • 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.
  • 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).
  • 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.
  • 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.
  • 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.
  • In return for the Guarantee, the Authority receives a commercial guarantee fee (the Fee) from GFG.
  • 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.

Authority’s interests

17. 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.

18. 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.

19. 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.

Section 30(c) – Prejudice to effective conduct of public affairs – “otherwise” prejudice (Part (i) of the request)

20. Section 30(c) of FOISA provides that information is exempt 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.

21. The word "otherwise" distinguishes the harm required from that envisaged by the exemptions in section 30(a) and (b).  This is a broad exemption and the Commissioner expects any public authority applying 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.

22. There is no definition of "substantial prejudice" in FOISA, but the Commissioner considers the harm in question would require to be of real and demonstrable significance.  The authority must also be able to satisfy the Commissioner that the harm would, or would be likely to, occur: therefore, the authority needs to establish a real risk or likelihood of actual harm occurring as a consequence of disclosure at some time in the near (certainly the foreseeable) future, not simply that the harm is a remote possibility.

23. During the investigation, the Authority confirmed that it was now relying on this exemption to withhold some information, namely that which it had withheld, at review stage, under section 33(1)(b) of FOISA.

The Authority’s submissions on section 30(c)

24. In its submissions to the Commissioner, the Authority believed 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 was a significant employer in the local area, the Authority had a significant interest in the business through the Guarantee.

25. The Authority submitted that there were three key reasons for withholding the information under the exemption in section 30(c), as follows:

Point (a) - Disclosure would weaken the Authority’s ability to negotiate guarantee terms

26. The Authority submitted 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 their 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

27. The Authority submitted that businesses may be 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.  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.

28. As these companies had not consented to disclosure, the Authority considered that release of the information would likely undermine trust in it, leading to businesses being reluctant to engage with it on such matters in the future, to the detriment of the Scottish economy and employment.  For these reasons, the Authority believed disclosure would substantially prejudice its ability to take similar action to secure the future of employers and jobs.

29. 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.

Point (c) - Disclosure would remove the private space for consideration that is required by the Authority to make decisions in relation to a significant contract with implications for jobs and the economy

30. The Authority submitted that the Guarantee was a live agreement, and it was required to take decisions in relation to the management of the Guarantee.  It argued that release of information relating to the Guarantee, including the terms of the Guarantee, would inhibit substantially its ability to make such decisions in the public interest, by removing the private space required for it to do so.

31. The Authority considered that disclosure would also substantially prejudice its relationship with GFG.  In its view, disclosing the content of a live agreement to which GFG is party could negatively impact on GFG’s financial operations in a number of stated ways.  The Authority believed that GFG would likely consider that it had revealed sensitive details which were shared on a confidential basis in respect of the agreement, which would be detrimental to GFG and its ongoing relationship with the Authority.

32. In relation to the Applicant’s claim that the marketing presentation was in the public domain, the Authority confirmed that, other than the information which it had disclosed in response to the Applicant’s request and request for review, it was unaware of any other information in that report being in the public domain, and online searches were unable to identify any additional content published online.

The Applicant's submissions on section 30(c)

33. The Applicant disagreed that the exemption in section 30(c) was engaged.  In their view, disclosure of the withheld information would not result in the significant probability of substantial prejudice.

34. In respect of point (a) above, the Applicant submitted that the Authority had not substantiated the link between the specific information, disclosure and harm.  They argued that the Lochaber Smelter Guarantee and Reimbursement Agreement (GRA) was a novel, highly unusual agreement with a financing firm (Greensill Capital (UK) Ltd) which was not authorised and regulated by the Financial Conduct Authority, and which had subsequently collapsed into administration.  In their view, the unique nature of this agreement would not compromise negotiations in future guarantees.

35. In respect of point (b) above, the Applicant did not believe there was any requirement for the Authority to obtain the consent of the participating companies prior to disclosing information.  In their view, the participating companies will have engaged into the GRA knowing that the Authority was a public authority for the purposes of FOISA, and so information could be disclosed solely at the discretion of the Authority.  They argued that the agreement should contain a clause to that effect.

36. The Applicant also believed that an unredacted version of the marketing presentation was in the public domain, held by individuals within the financial investment community (as a prospective investment in 2017) and financial journalists.  As this had only come to the Applicant’s attention retrospectively, they had been unable to access a copy at the time.

The Commissioner's views on section 30(c)

37. The Commissioner has considered the submissions from both parties.  He has also taken into account the age of the information as at the date when the Authority issued its review outcome (i.e. 8 April 2022).  Given the marketing presentation was dated November 2016, the information was approximately six and a half years old at that time.

38. 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.

39. By the date of the Authority’s review, the financial viability of the companies involved in the Lochaber Smelter Guarantee had changed considerably.  However, what remained constant was the existence of the Authority’s financial obligation in the event that the Guarantee was called-in.

40. The Commissioner has considered the remaining information in the marketing presentation being withheld by the Authority, which comprises (i) a cash flow profile graph and (ii) the number of MWh per annum (on pages 2 and 12 of marketing presentation respectively).  He is of the view that many of the arguments now put forward by the Authority for withholding this information under section 30(c) of FOISA were pertinent when the Authority issued its review outcome in April 2022 (i.e. when it withheld that same information under section 33(1)(b)).

41. While the Commissioner is not obliged to consider the information with regard to current circumstances, he is of the view that, given the changing circumstances regarding GFG’s financial situation in relation to the Guarantee, the sensitivity of this information, even continuing into the present, is something which he cannot ignore.  He recognises, however, that the level of sensitivity will not always be the same, say in a number of years’ time.

42. Having considered all of the arguments put to him, the Commissioner is of the view that disclosure of this information would have a detrimental impact on the ability of the Authority, GFG and the other commercial companies involved in the Lochaber Smelter Guarantee, to continue in this arrangement in a competitive environment.  He believes that this, in turn, would impede the Authority’s ability to engage with businesses, in future similar arrangements, in the best interests of Scotland and its economy.

43. The Commissioner is satisfied that, if the remaining withheld information in the marketing presentation was disclosed, this would, or would be likely to, prejudice substantially the effective conduct of public affairs.  He therefore finds that the Authority was entitled to rely on the exemption in section 30(c) of FOISA to withhold this information.

Public interest test – section 30(c)

44. Section 30(c) is subject to the public interest test required by section 2(1)(b) of FOISA.  As the Commissioner has found that the exemption in section 30(c) was correctly applied to the withheld information, he is now therefore required to consider whether, in all the circumstances of the case, the public interest in disclosing the information is outweighed by the public interest in maintaining the exemption.

The Authority’s submissions on the public interest test – section 30(c)

45. 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.

46. 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.  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.  It 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.  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.

47. The Authority also believed that the public interest in maintaining the private space necessary for it to make effective decisions also outweighed that in the release of the information.

The Applicant’s submissions on the public interest test – section 30(c)

48.    The Applicant submitted a number of arguments in support of their position that the public interest favoured disclosure of the information.  In their view, there was a public interest:

  • in ensuring the Guarantee agreement and the Authority’s actions complied with all laws and regulations;
  • in ensuring the Scottish Parliament’s Finance and Constitution Committee was provided with complete and accurate information by the Authority, and that it provided effective independent scrutiny prior to approving the £586m contingent liability;
  •  in subjecting the financial guarantee to broad public scrutiny to increase the quality of the scrutiny over that achievable by a small number of politicians (lay people);
  • in disclosure, because of suspected fraud and money-laundering between two of the key parties (GFG and Greensill Capital (UK) Limited), because the Guarantee was not based on sound data, and because one of the key parties to the agreement (Greensill Capital (UK) Limited) was now in administration;
  • in ensuring the agreement was robust and at arm’s length, with no mutual reward between the Authority and other parties to the agreement, and that it provided value for money at all stages (from approval to delivery);
  • in disclosure, in order to evaluate relative spending priorities and to be able to independently monitor and measure approved project outcomes;
  • in disclosure, because of the financial size (£586m), the unusual term (25 years), the nature and the complexity of the agreement;
  •  in understanding the Authority’s exposure to the GRA; and
  • in understanding the security and guarantees the Authority has obtained from GFG member companies for entering into the agreement and, specifically, whether they were adequate.

The Commissioner's view on the public interest – section 30(c)

49. 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.  In the context of FOISA, the public interest should be considered as “something which is of serious concern and benefit to the public”.  As stated previously, due to 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.

50. As rehearsed above, the Commissioner has already accepted that disclosure would, or would be likely to, cause substantial prejudice to the effective conduct of public affairs.

51. Taking into account the significant size of the Lochaber Smelter Guarantee and those potentially affected by the circumstances surrounding it, particularly were it to be called in, the Commissioner accepts that there is clear and substantial public interest in understanding the finer details of the Guarantee and any underpinning or associated information.  However, he recognises that this must be carefully balanced against any impact that disclosure of such detailed information (whether it be financial, commercial or otherwise) 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.

52. The Commissioner considers there is a significant and substantial public interest in maintaining the exemption in relation to information which could adversely impact the ability of the parties involved to continue, as planned, with the Guarantee.  He recognises 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.

53. In the Commissioner’s view, there is also a substantial public interest in maintaining the exemption in relation to sensitive information which could adversely impact GFG’s current (and changing) financial situation and lead to the Guarantee being called in.   He 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 would not be in the public interest.

54. On balance, therefore, the Commissioner is of the view that the public interest in maintaining the exemption outweighs the public interest in disclosing the information.

55. The Commissioner therefore finds that the Authority was entitled to withhold the information requested under the exemption in section 30(c) of FOISA.

Whether the Authority held any information for part (ii) of the request

56. 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.

57. The information to be given is that held by the public authority at the time the request is received, as defined by section 1(4).  This is not necessarily to be equated with information an applicant believes the public authority should hold.  If no such information is held by the public authority, section 17(1) of FOISA requires it to give the applicant notice in writing to that effect.

58. The standard of proof to determine whether a Scottish public authority holds information is the civil standard of the balance of probabilities.  In determining where the balance of probabilities lies, the Commissioner considers the scope, quality, thoroughness and results of the searches carried out by the public authority.  He also considers, where appropriate, any reason offered by the public authority to explain why it does not hold the information.  While it may be relevant as part of this exercise to explore expectations about what information the public authority should hold, ultimately the Commissioner's role is to determine what relevant recorded information is (or was, at the time the request was received) actually held by the public authority.

59. The Commissioner has taken account of the Applicant’s views, in both their requirement for review and their application, in which they state their belief that the Authority should hold the information requested in part (ii) of their request.

60. In its submissions to the Commissioner, the Authority described the searches it had undertaken, to identify any information falling within the scope of part (ii) of the request, all of which resulted in a nil return:

  • keyword searches of its electronic Records Document Management system, using the keywords/phrases “Project boots prospectus”, “Project boots due diligence”, “Project boots listing particulars”, ““Project boots memorandum”, “Project boots documents”
  • searches of the Industrial Sectors and Projects team mailbox

61. The Authority confirmed (with supporting evidence) that, in March 2020, it had asked Greensill Capital to provide any other marketing material prepared in connection with the sale of bonds and, in response, Greensill Capital had confirmed that there were no other marketing materials available.

62. In conclusion, the Authority was satisfied that, given the circumstances, together with the extent and results of the searches carried out, these were sufficient to allow it to conclude that no information was held falling within the scope of part (ii) of the request.

63. Having considered all relevant submissions and the terms of this part of the request, the Commissioner is satisfied that, by the end of the investigation, the Authority had taken adequate, proportionate steps in the circumstances to establish whether it held any information that fell within the scope of part (ii) of the request.  He has considered the reasons and supporting evidence provided by the Authority which explain why the information requested in part (ii) is not held.

64. The Commissioner is satisfied that the searches described by the Authority would have been capable of identifying any information relevant to part (ii) of the request.  The Commissioner is therefore satisfied, on the balance of probabilities, that the Authority does not (and did not, on receipt of the request) hold any information falling within the scope of part (ii) of the Applicant’s request.  He finds that the Authority was therefore correct to give notice, in terms of section 17(1) of FOISA, that it did not hold the information requested in part (ii) of the request.

Decision

The Commissioner finds that the Authority complied with Part 1 of the Freedom of Information (Scotland) Act 2002 in responding to the information request made by the Applicant.

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.

Daren Fitzhenry
Scottish Information Commissioner

21 June 2023 

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.”

…

(4) The information to be given by the authority is that held by it at the time the request is received, except that, subject to subsection (5), any amendment or deletion which would have been made, regardless of the receipt of the request, between that time and the time it gives the information may be made before the information is given.

…

(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.

…

17 Notice that information is not held

(1) Where-

(a) a Scottish public authority receives a request which would require it either-

(i) to comply with section 1(1); or

(ii) to determine any question arising by virtue of paragraph (a) or (b) of section 2(1),

if it held the information to which the request relates; but

(b) 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.

…

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.

33 Commercial interests and the economy

(1) Information is exempt information if-

…

(b) its disclosure under this Act would, or would be likely to, prejudice substantially the commercial interests of any person (including, without prejudice to that generality, a Scottish public authority).

…

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).

…