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Publication - FOI / EIR Release

Transport Scotland's contract extension with Argyll Ferries Limited: FOI release

Published: 17 Nov 2017

Information request and response under the Freedom of Information (Scotland) Act 2002.

FOI reference: FOI/17/01518
Date received: 3 July 2017
Date responded: 25 August 2017

Information requested

  • All information held by the Transport Scotland in relation to the contract extension with Argyll Ferries Limited post June 2017. This should include, but not exclusively, any correspondence relating to the finances, details of the contract extension or any new contract and any variations, updates or amendments to the now expired PSC between Argyll Ferries and Transport Scotland.

Response

Delay in Response

We received your request on 3 July 2017 and planned to respond in accordance with FOISA by 31 July 2017. Unfortunately, due to extenuating circumstances, I was unable to ensure all of the information within scope of your request had been gathered before the FoI due date. This was communicated to you within the email dated 1 August 2017. I apologise for the delay.

This process has now been fully completed and I am writing with the formal response to your request.

a) Contract extension

A copy of the contract extension, with details which are exempt under FOI redacted, is available on the Transport Scotland website and was published on 29 June 2017. The contract extension does not include the Contract Year 7 base case for the reasons detailed below. The contract extension can be accessed at the attached link. https://www.transport.gov.scot/media/39436/minute-of-extension-june-2017-gourock-dunoon.pdf

Under section 25(1) of FOISA, we do not have to provide you with information if it is already reasonably accessible to you. If, however, you do not have internet access to obtain this information from the website(s) listed, then please contact me again and I will send you a paper copy.

b) Variations, updates and amendments to contract extension.

No other contract documentation or contract variations have been issued from the commencement of the current contract extension on 30 June 2017. Consequently, we do not hold 'any variations, updates or amendments to the now expired PSC between Argyll Ferries and Transport Scotland.'

c) Financial

While our aim is to provide information whenever possible, in this instance we are unable to provide some of the financial information you have requested relating to the contract extension or associated base case because exemption under Section 33(1)(b), commercial interests of FOISA applies. This is in regard to financial discussions and agreement of the contract extension (Contract Year 7) base case between Transport Scotland and the current operator, Argyll Ferries Limited. The reasons why these exemptions apply are explained below.

d) Other information in scope of your request has been provided in Annex B.

Reasons for not providing information

Exemptions apply, subject to the public interest test.

Section 33(1)(b) – Commercial interests

An exemption under section 33(1)(b) of FOISA (commercial interests) applies to the financial information requested associated with the Contract Year 7 base case. This exemption applies because disclosure of this information would, or would be likely to, prejudice substantially the commercial interests of Argyll Ferries Ltd.

This exemption is subject to the 'public interest test'. Therefore, taking account of all the circumstances of this case, we have considered if the public interest in disclosing the information outweighs the public interest in applying the exemption. We have found that, on balance, the public interest lies in favour of upholding the exemption. We recognise that there is a public interest in disclosing information as part of open and transparent government, and to help account for the expenditure of public money. However, there is a greater public interest in protecting the commercial interests of Argyll Ferries Ltd to ensure that we are always able to obtain the best value for public money.

Argyll Ferries Ltd operate a service under contract to the Scottish Ministers that was won following a competitive tendering exercise and also faces competition from your company, Western Ferries, for carriage of passengers. Disclosing their financial information would be likely to place Argyll Ferries Ltd, or their parent company David MacBrayne Ltd or any other subsidiary companies in the group, at a competitive disadvantage in any future tendering exercises.

Section 29(1)(b) – Ministerial communications

An exemption under section 29(1)(b) of FOISA (Ministerial communications) applies to some of the information requested because it relates to communications between Scottish Ministers.

  • Ministerial advice on policy review

  • On-going policy considerations

  • Transport Scotland officials need to have the ability to seek Ministerial advice with assurance and confidence

  • Scottish Ministers need to be able to give / receive advice without threat or prejudice of disclosure etc

This exemption is subject to the 'public interest test'. Therefore, taking account of all the circumstances of this case, we have considered if the public interest in disclosing the information outweighs the public interest in applying the exemption. We have found that, on balance, the public interest lies in favour of upholding the exemption. We recognise that there is a public interest in disclosing information as part of open, transparent and accountable government, and to inform public debate. However, there is a greater public interest in allowing Ministers a private space within which policy positions can be explored and refined, until the Government as a whole can adopt a policy that is sound and likely to be effective. This private thinking space also allows for all options to be properly considered, so that good policy decisions can be taken. Premature disclosure is likely to undermine the full and frank discussion of issues between Ministers, which in turn will undermine the quality of the decision making process.

Section 29(1)(c) – Advice by the Law Officers

An exemption under section 29(1)(c) of FOISA (Advice by the Law Officers) applies to the some of the information you have requested.

  • Legal advice on policy review.

  • On-going policy considerations and related legal advice.

  • Transport Scotland officials need to have the ability to seek advice from law officers with assurance and confidence.

  • Law officers need to be able to give advice without threat or prejudice of disclosure Etc.

Sensitive information relating to the procurement exercise of the previous Gourock to Dunoon Public Service Contract is withheld as it is exempt under section 29(1)(c). In this particular case, there is a summary of financial information relating to David MacBrayne Ltd, which, if released, would be a breach of the legal advice privilege.

This exemption is subject to the 'public interest test' and there is some public interest in the transparency and accountability of procurement processes involving the public purse. However, we consider that there is a much greater, overriding public interest in maintaining the right to confidentiality of communications between legal advisers and clients, to ensure that Ministers and officials are able to receive legal advice in confidence, like any other public or private organisation. It is important to allow decisions to be taken in a fully informed legal context which requires confidentiality to ensure that the client and their shareholders are able to defend or consider its legal interests and are not prejudiced by inappropriate disclosure of information or legal analysis.

There is a vital public interest in ensuring that the Government and its wholly-owned companies are able to defend their interests. Disclosure of legal advice has a significant potential to prejudice that ability, both directly, by unfairly exposing their legal position to challenge, and indirectly by diminishing the reliance it can place on the advice having been fully considered and presented without fear or favour.

For these reasons we believe that the public interest in release is outweighed considerably by the public interest in maintaining this exemption.

Section 36(1) – legal advice

An exemption under section 36(1) of FOISA (confidentiality in legal proceedings) applies to some of the information requested because it is legal advice and disclosure would breach legal professional privilege.

This exemption is subject to the 'public interest test'. Therefore, taking account of all the circumstances of this case, we have considered if the public interest in disclosing the information outweighs the public interest in applying the exemption. We have found that, on balance, the public interest lies in favour of upholding the exemption. We recognise that there is some public interest in release as part of open and transparent government, and to inform public debate. However, this is outweighed by the strong public interest in maintaining the right to confidentiality of communications between legal advisers and clients, to ensure that Ministers and officials are able to receive legal advice in confidence, like any other public or private organisation.

About FOI

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

Contact

Please quote the FOI reference

Central Enquiry Unit
Email: ceu@gov.scot
Phone: 0300 244 4000

The Scottish Government
St Andrew's House
Regent Road
Edinburgh
EH1 3DG

Published:
17 Nov 2017
Transport Scotland's contract extension with Argyll Ferries Limited: FOI release