FOI reference: FOI/17/01567
Date received: 5 September 2017
Date responded: 8 November 2017
'Please release all recorded information held by your organisation dating from 1 January 2015 concerning the Prestwick spaceport proposal and the broader policy of supporting commercial spaceflight in Scotland which names or is in connection with:
- Donald Trump Snr, Donald Trump Jnr, Eric Trump, Ivanka Trump or Jared Kushner
- George Sorial of the Trump Organization
- Stephen Walker of Trump Turnberry
- any arm of the US government, the White House or its representatives
- any other executive or representative of the Trump Organization or of Trump Turnberry or their associated companies or representatives.'
'Please release all recorded information dating from 1 January 2015 in connection with Glasgow Prestwick Airport or Glasgow Prestwick Spaceport which names or refers to:
- any member of the Trump family, including but not exclusively those named above
- any member of the Trump Organization, of Trump Turnberry or any associated company or their representatives
- any arm of the US government, the White House or its representatives
'The recorded material for all parts of the request should include, but not exclusively, all email and written correspondence, internal memos, notes, reports or feasibility studies. I would request the search includes details of publicity events, stakeholders events, ministerial or office meetings or briefings and so on, as well as correspondence, memos, notes, reports or emails.'
I have concluded that the original decision should be confirmed, with modifications.
Our original response did not deal with the application of the public interest test properly; it should have dealt with the test in relation to each individual exemption. I have also concluded that additional exemptions apply to some of the information. Finally, I have found that the exemptions do not apply to some of the information we withheld and so I enclose that information with this letter. I shall deal with each point in turn.
In your review request, you ask that we review the redactions on pages 3, 4, 8, 19, 25, 27, 28, 44, 46 and 47 of the pdf document "FoI 17 01567 – response – redaction document – 31 August 2017", as well as the redactions in document "FoI 17 01567 – response – extract document – 31 August 2017".
You also ask that we release every document cited in the "extract document" in full, as well as the notes and slides in document: "Extract from briefing to the Minister for Transport and the Islands 'Glasgow Prestwick Airport – Transport Scotland meeting – 9 June 2016 – note and presentation slides' – dated 7 June 2016".
Under FOISA we are only obliged to consider the information that is within the scope of a request, and so when providing information we should do so in a form which will provide a complete and accurate response to a request. We are not required to provide copies of 'documents' but relevant 'information' and this can be done in extract form. I have reviewed the redactions that we concluded were outwith the scope of your request, and am in agreement with that decision. As such, we are not required to provide that information to you as it does not relate to the terms of your request.
Reasons for not providing information
Moving on to the exemptions we applied, I shall deal with each in turn.
Section 30(b)(ii) - free and frank exchange of views for the purposes of deliberation
Our original response did not properly explain what this exemption is or why it applied to the information in question.
An exemption under section 30(b)(ii) of FOISA (free and frank exchange of views) applies to some of the information requested. This exemption applies because disclosure would, or would be likely to, inhibit substantially the free and frank exchange of views for the purposes of deliberation. This exemption recognises the need for Ministers and officials to have a private space within which to discuss and explore options before the Scottish Government reaches a settled public view. Disclosing the content of free and frank discussions on aviation policy and development of Glasgow Prestwick Airport (GPA) will substantially inhibit such discussions in the future, particularly because these discussions relate to sensitive or commercial issues, including future business opportunities for GPA.
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 and officials a private space within which to explore and refine the Government's policy position on aviation policy and development of Glasgow Prestwick Airport, until the Government as a whole can adopt a policy that is sound and likely to be effective. This private thinking space is essential to enable 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 and officials, which in turn will undermine the quality of the policy making process, which would not be in the public interest.
However, I consider the exemption does not apply to some information and so am enclosing that within the revised disclosure bundles prepared for you.
Section 32(1)(a)(i) - Substantial prejudice to international relations
Our original response wrongly stated that this exemption was being used to withhold some of the information because release of that information could adversely affect policy development. Instead, we should have stated that release would substantially prejudice international relations. However I consider it inappropriate to apply this exemption to the information because it does not relate to international relations.
Section 33(1)(b) – Commercial interests
Information is exempt from disclosure under section 33(1)(b) of FOISA if it would substantially damage the commercial interests of any person. Our original response did not properly explain what this exemption is, but I am content that we clearly applied our consideration of the public interest test to this exemption.
I have concluded that this exemption does not apply to some of the information originally withheld from you and so enclose that information with this letter. However, I have found that release of the remainder of this information would be likely to give the Airport's competitors an advantage in obtaining business from potential customers, and so could significantly harm the commercial interests of GPA. I am therefore content that this exemption was correctly applied to the remainder of the information.
I have reconsidered our application of the public interest test. Whilst I 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, there is a greater public interest in protecting the commercial interests of companies which enter into Scottish Government contracts, to ensure that we are always able to obtain the best value for public money.
Section 3(2)(a)(ii) – Information received from the UK Government
Having reviewed the information, I have found that we should have applied the terms of section 3(2)(a)(ii) of FOISA to some of the information. This information is not held by the Scottish Government for the purposes of FOISA because we received it in confidence from the UK Government. This means that, under the terms of section 3(2)(a)(ii) of FOISA, we are unable to disclose it in response to your request. However, you may wish to submit a new request under the Freedom of Information Act 2000 (FOIA) to the UK Space Agency at firstname.lastname@example.org who should be able to help you further.
Section 38(1)(b) – Personal information
I have also found that we should have applied the terms of section 38(1)(b) (Personal information) to some of the information. This exemption applies because it is personal data of a third party, i.e. names and contact details of Scottish Government officials and staff of external organisations, and disclosing it would contravene the data protection principles in Schedule 1 to the Data Protection Act 1998. This exemption is not subject to the 'public interest test', so we are not required to consider if the public interest in disclosing the information outweighs the public interest in applying the exemption.
Section 29(1)(a) – Formulation or development of government policy
Finally, in relation to our application of the exemptions, I have found that an exemption under section 29(1)(a) of FOISA (formulation or development of government policy) should have been applied to to some of the information requested because it relates to the development of the Scottish Government's policy on aviation and the development of Glasgow Prestwick Airport.
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 high quality policy and decision-making, and in the properly considered implementation and development of policies and decisions. This means that Ministers and officials need to be able to consider all available options and to debate those rigorously, to fully understand their possible implications. Their candour in doing so will be affected by their assessment of whether the discussions on aviation policy and the development of Glasgow Prestwick Airport will be disclosed in the near future, when it may undermine or constrain the Government's view on that policy while it is still under discussion and development.
You ask us to explain what the following acronyms refer to:
- Prestwick FBO
Here is a full explanation of the acronyms:
- RS&H – Reynolds, Smith and Hills
- PAC – Public Audit Committee
- PAHL – Prestwick Aviation Holdings Limited
- Prestwick FBO – Fixed Base Operations
In your review request you ask for:
"There is an email from Gary Cox at Transport Scotland date 9 June 2015 to Iain Cochrane at GPA on a briefing paper he was preparing for Keith Brown for a Scottish parliament committee meeting on 17 June 2015 – please provide that briefing paper.
"That email also states "there is much we can recycle from last time". If that is a reference to another briefing paper for a minister on Prestwick which mentions Donald Trump, Trump Turnberry or the Trump Organization, please release it."
As these are fresh requests under FOISA, I have passed them on to the aviation policy team of Transport Scotland which will respond to you in due course.
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
Please quote the FOI reference
Central Enquiry Unit
Phone: 0300 244 4000
The Scottish Government
St Andrew's House