Decision 283/2013 Storas Uibhist Limited and Transport Scotland
Lochboisdale to Mallaig ferry service
Reference No: 201301908
Decision Date: 10 December 2013
Summary
On 20 December 2012, Storas Uibhist Limited (SUL) asked Transport Scotland for the minutes of meetings held to discuss the introduction of a Mallaig to Lochboisdale ferry service, together with related correspondence from the operators. Following a review, Transport Scotland disclosed some of the correspondence, but withheld other correspondence on the basis that disclosure would, or would be likely to, prejudice substantially the effective conduct of public affairs and the operators' commercial interests. It told SUL it did not hold any minutes of meetings.
Following an investigation, the Commissioner accepted that Transport Scotland did not hold any minutes of meetings and that some of the information it did hold was exempt from disclosure. She did not accept that Transport Scotland had demonstrated that disclosure of some of the information would prejudice substantially the operators' commercial interests. She required Transport Scotland to provide this information to SUL.
Relevant statutory provisions
Freedom of Information (Scotland) Act 2002 (FOISA) sections 1(1), (4) and (6) (General entitlement); 2(1)(b) (Effect of exemptions); 17(1) (Notice that information is not held); 29(1)(a) and (4)(a) (definition of "government policy"); 33(1)(b) (Commercial interests and the economy)
The full text of each of the statutory provisions cited above is reproduced in the Appendix to this decision. The Appendix forms part of this decision.
Background
1. On 20 December 2012, SUL wrote to Transport Scotland requesting the following information:
a. Details of any correspondence in 2012 which the Scottish Government or Transport Scotland received from David MacBrayne Limited (DML) or CalMac Ferries Limited (CalMac) proposing, or relating to, the introduction of a Lochboisdale to Mallaig ferry service.
b. Any Scottish Government or Transport Scotland minutes of meetings in 2012, at which a proposal from DML or CalMac to introduce a Lochboisdale to Mallaig ferry service was discussed.
2. On 23 and 29 January 2013, and again on 5 March 2013, Transport Scotland wrote to SUL apologising for the delay in responding.
3. On 4 April 2013, SUL wrote to Transport Scotland, requesting a review on the basis that it had failed to respond to its request.
4. Transport Scotland notified SUL of the outcome of its review on 15 April 2013. Transport Scotland provided some information to SUL, explaining that other information was being withheld in terms of sections 30(b)(ii) (Prejudice to effective conduct of public affairs) and 33(1)(b) (Commercial interests and the economy) of FOISA. It further explained that it held no information falling within the scope of part b) of the request.
5. On 15 August 2013, SUL wrote to the Commissioner's office, stating that it was dissatisfied with the outcome of Transport Scotland's review and applying to the Commissioner for a decision in terms of section 47(1) of FOISA.
6. The application was validated by establishing that SUL made a request for information to a Scottish public authority and applied to the Commissioner for a decision only after asking the authority to review its response to that request.
Investigation
7. Transport Scotland is an agency of the Scottish Ministers (the Ministers). On 22 August 2013, in line with agreed procedures, the Ministers were notified in writing that an application had been received from SUL and were asked to provide the Commissioner with the information withheld from SUL. Transport Scotland responded with the information requested and the case was then allocated to an investigating officer.
8. Subsequent references to contact with or submissions from Transport Scotland are therefore references to contact with or submissions made by the Ministers on behalf of Transport Scotland.
9. The investigating officer subsequently contacted Transport Scotland, giving it an opportunity to provide comments on the application (as required by section 49(3)(a) of FOISA) and asking it to respond to specific questions. Transport Scotland was asked to justify its reliance on any provisions of FOISA it considered applicable to the information requested by SUL (with particular reference to any exemptions applied in withholding information) and was asked to explain the steps it had taken to identify and locate the information.
10. Transport Scotland responded with submissions in support of its position that the information that it had withheld from SUL was exempt from disclosure in terms of FOISA. It also explained the steps taken to identify and locate information falling within the scope of SUL's request.
Commissioner's analysis and findings
11. In coming to a decision on this matter, the Commissioner considered all of the withheld information and the relevant submissions, or parts of submissions, made to her by both SUL and Transport Scotland. She is satisfied that no matter of relevance has been overlooked.
Information held by Transport Scotland
12. 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. Section 1(6) qualifies this obligation, making it subject to other provisions of FOISA which allow authorities to withhold information or charge a fee for it. The restrictions contained in section 1(6) are not applicable in this case. The information to be given is that held by the authority at the time the request is received, as defined in section 1(4). If no such information is held by the authority, section 17(1) of FOISA requires the authority to give the applicant notice in writing to that effect.
13. In its submissions to the Commissioner, Transport Scotland explained the searches and enquiries it undertook to ascertain whether it held further information falling within the scope of SUL's requests. It provided evidence of the outcomes of these, which focused on the Ferries Unit (which it submitted was the only part of the organisation DML or CalMac could be expected to contact on the subject matter of the request).
14. Transport Scotland explained that all relevant staff members in the Ferries Unit were asked to conduct searches of their email inboxes. In addition, the Scottish Government's electronic Records Management System was searched. Transport Scotland confirmed that all relevant information would be saved in the electronic filing system as a matter of routine. It noted that these searches did not identify any relevant information, other than that provided to the Commissioner.
15. Having considered all relevant submissions and the terms of the request, the Commissioner accepts that Transport Scotland interpreted SUL's request reasonably and took adequate, proportionate steps in the circumstances to establish what information it held and which fell within the scope of each request.
16. Given the explanations provided, she is satisfied in particular that Transport Scotland does not (and did not, on receipt of SUL's request) hold any information falling within part b) of the request. Transport Scotland was therefore correct to give SUL notice to that effect, in terms of section 17(1) of FOISA.
17. Transport Scotland provided submissions which explained the nature and context of the withheld information, and why it believed disclosure to be exempt in terms of section 29(1)(a), 30(b)(i) and 33(1)(b) of FOISA (these are different to the exemptions originally applied by Transport Scotland). Given that these submissions focused on the actual content of the withheld information, the Commissioner cannot describe them in detail in this decision.
Section 29(1)(a) - Formulation of Scottish Administration policy
18. Transport Scotland submitted that some of the information withheld was exempt from disclosure in terms of section 29(1)(a) of FOISA.
19. Under section 29(1)(a) of FOISA, information held by the Scottish Administration (which includes the Ministers) is exempt information if it relates to the formulation or development of government policy. The Commissioner takes the view that "formulation" suggests the early stages of the policy process where options are identified and considered, risks are identified, consultation takes place and recommendations and submissions are presented to Ministers. "Development" suggests the processes involved in reviewing, improving upon or amending existing policy: it can involve piloting, monitoring, analysing, reviewing or recording the effects of existing policy.
20. For information to fall under this exemption, it need only be held by the Scottish Administration (the Ministers) and "relate" to the formulation or development of government policy.
21. As mentioned above, Transport Scotland is an agency of the Ministers and the Commissioner is satisfied that information held by Transport Scotland is deemed to be held by the Ministers for the purposes of FOISA.
22. Transport Scotland submitted that section 29(1)(a) applied to one document in its entirety and to a number of emails within another document. It explained that, while this information was prepared by CalMac, it was drafted to support policy development by Transport Scotland and the Ministers in relation to a potential Lochboisdale to Mallaig ferry service. This policy development, Transport Scotland submitted, was still ongoing as no final decisions had yet been made on the full reinstatement of the ferry sailings.
23. Having considered the information to which Transport Scotland applied section 29(1)(a), the Commissioner is satisfied that this information all relates to the formulation and development of the Scottish Ministers' policy with respect to the provision of a ferry service between Mallaig and Lochboisdale.
24. The exemption in section 29(1)(a) is, however, a qualified exemption, which means that its application is subject to the public interest test set out in section 2(1)(b) of FOISA. Therefore, having decided that the information is exempt under section 29(1)(a), the Commissioner must go on 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.
Public interest test - section 29(1)(a)
25. Transport Scotland recognised a public interest in disclosing the information in order to promote open and transparent government, and to give more information to the local community about the prospects of introducing such a ferry service. However, it submitted that the withheld information was more about the deployment of CalMac's fleet than specifically about that particular ferry service. Consequently, Transport Scotland queried whether the information would serve to answer SUL's question (in its application to the Commissioner) about "why the Scottish Government has not taken up the opportunity to introduce the service".
26. Whilst recognising the need for transparency, Transport Scotland submitted that there was a public interest in ensuring that Transport Scotland officials and CalMac had the private space to be able to discuss and formulate ideas on potential ferry services, and for Transport Scotland to be able to consider the information relating to various options carefully (and, where appropriate, to put those options to the Ministers), without that information becoming public before it was fully developed.
27. Transport Scotland further submitted that, while the affected communities would always be consulted about any ferry service proposals, releasing this withheld information at this time (while the policy process remained ongoing) would not be in the public interest as it would not add to the communities' understanding of plans for any future service, and could instead cause potential confusion or speculation.
28. Transport Scotland acknowledged that, during the investigation, the Ministers announced the introduction of a three-year winter pilot service between Mallaig and Lochboisdale. It explained that, although not a permanent, nor a year round, reinstatement of the ferry service between Mallaig and Lochboisdale (SUL's desired option), this demonstrated the level to which Transport Scotland and the operator (CalMac) were willing to listen and act upon the requests of the community in South Uist.
29. On balance, Transport Scotland believed the public interest in maintaining the exemption outweighed that in disclosing the information. While accepting it was important for communities to be kept informed of developments (and therefore consulted regularly on proposals relating to ferry services), Transport Scotland considered this was outweighed by the stronger public interest in ensuring that Transport Scotland officials (and ultimately Ministers) were able to consider frank and detailed advice from CalMac on options to help in determining policy on which services. It believed that this should be provided without fear that such advice will be released prematurely, potentially causing confusion and raising more questions than it answered.
Submissions by SUL
30. In their application to the Commissioner, SUL submitted that the community had the right to know why the Ministers had not taken up the opportunity to reintroduce this much-needed service when there was a clear way for that to be done.
31. SUL also made submissions highlighting the importance of the ferry service to the Uists and comparing the quality of the service to that enjoyed by other islands served by the Clyde and Hebrides Ferries Contract. It noted that CalMac, funded by the Ministers, had been the sole provider of the relevant services for many decades. It explained that the community of South Uist had campaigned for many years for the reintroduction of the Lochboisdale-Mallaig ferry service, to help reduce population decline and improve the local economy.
32. SUL believed release of the information requested would be in the public interest as it would be used to help progress the campaign for the introduction of the Lochboisdale-Mallaig ferry service and thus deliver public benefit for the community of South Uist and the mainland port of Mallaig.
33. Having considered the content of the information withheld under this exemption, in the context of both sets of submissions, the Commissioner concludes in this case that the public interest in maintaining the exemption outweighs the public interest in disclosure. She does not believe disclosure would address the public interest arguments put forward by SUL to the extent that it would outweigh the evident public interest in withholding information on policy which remains under development. Consequently, she is satisfied that Transport Scotland was entitled to withhold this information under section 29(1)(a) of FOISA.
34. Given that the Commissioner has concluded that Transport Scotland was entitled to withhold the information under section 29(1)(a) of FOISA, she is not required (and does not intend) to consider the exemption in section 30(b)(i) of FOISA, applied by Transport Scotland to the same information.
Section 33(1)(b) - Commercial interests and the economy
35. Transport Scotland submitted that it was withholding the remainder of the withheld information under section 33(1)(b) of FOISA. This provides that information is exempt information if its disclosure under FOISA would, or would be likely to, prejudice substantially the commercial interests of any person (including a Scottish public authority). This is a qualified exemption and is therefore subject to the public interest test in section 2(1)(b) of FOISA.
36. There are certain elements which an authority needs to demonstrate are present when relying on this exemption. In particular, it needs to indicate:
a. whose commercial interests would (or would be likely to) be harmed by disclosure,
b. the nature of those commercial interests and
c. how those interests would (or would be likely to) be prejudiced substantially by disclosure.
37. The prejudice must be substantial, in other words of real and demonstrable significance. Where the authority considers that the commercial interests of a third party would (or would be likely to be) harmed, it must make this clear. Generally, while the final decision on disclosure will always be one for the authority, it will assist matters if the third party has been consulted on the elements referred to above.
38. In the circumstances, the Commissioner accepts that both Transport Scotland (in procuring the service in question in a commercial market) and those providing the service (DML or CalMac) would have relevant commercial interests in the information requested.
39. Having reached this conclusion, the Commissioner must go on to consider whether the commercial interests she has identified would, or would be likely to, be prejudiced substantially by the disclosure of the information withheld. Substantial prejudice is described in paragraph 37 above: such prejudice must be at least likely before the exemption can apply.
40. In its submissions to the Commissioner, Transport Scotland stated that disclosure of the information withheld under section 33(1)(b) would be likely to harm DML's commercial interest and that of its subsidiary CalMac, the operator of the Clyde and Hebrides Ferry Service.
41. Transport Scotland submitted that the information withheld contained a range of commercially sensitive information including details of, and assumptions on, certain costs and receipts. Given that these submissions focused on the actual content of the withheld information, the Commissioner cannot describe them in detail here.
42. Transport Scotland stated that this information, if disclosed, would be likely to significantly damage the operator's commercial interests and give an advantage to potential competitors (on the route in question and elsewhere, the information being capable of extrapolation to other routes). It explained that competition on any route would invariably mean a loss of revenue to DML/CalMac and a requirement for greater subsidy from Transport Scotland/the Ministers. Providing this commercially sensitive information to potential competitors would make it easier to start a new service, and compete in any future tender process for the relevant routes, to the significant harm of DML and CalMac (and ultimately also government).
43. The Commissioner has considered the information withheld under this exemption, along with the submissions received. Based on the submissions made by Transport Scotland, she is not satisfied that the disclosure of the information redacted from the emails of 30 April 2012, 26 June 2012 or 7 September 2012 (as provided to SUL in Transport Scotland's review) would, or would be likely to, cause the substantial prejudice required for section 33(1)(b) of FOISA to be engaged. It is not evident from the submissions provided how disclosure of the information could have that effect. Given that the Ministers did not apply any other exemption to this information, she requires the Ministers to disclose the information contained in these emails without any redactions.
44. On the other hand, the Commissioner accepts that disclosure of the remaining information withheld under section 33(1)(b) would be likely to have a substantially prejudicial effect on Transport Scotland and the operator, given the potential benefit to competitors as argued by Transport Scotland. She is therefore satisfied that this remaining information is exempt under section 33(1)(b): its disclosure would, or would be likely to, prejudice substantially the commercial interests of both Transport Scotland and the provider of the service.
Public interest test - section 33(1)(b)
45. As mentioned above, the exemption in section 33(1)(b) 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.
46. Transport Scotland identified a strong public interest in withholding this information in order to avoid significantly prejudicing the commercial interests of DML and CalMac, reducing their revenue as a result. It did not believe it to be in the public interest to give open access to commercially sensitive information that companies had developed and in some cases built up over time based on experience (as CalMac had), as that would unfairly erode the advantage that information gave them over potential competitors.
47. In relation to the public interest, SUL's submissions are as outlined at paragraphs 30-32 above.
48. The Commissioner accepts the general public interest in transparency and accountability, particularly where this involves spending from the public purse. She acknowledges that the withheld information might cast some light on these matters and has taken account that those entering into contracts with Scottish public authorities should be aware that, at times, information relating to these contracts will require to be released as a result of a request under FOISA.
49. The Commissioner has also taken account of the submissions made by Transport Scotland in favour of maintaining the exemption. She has already acknowledged the risk of substantial commercial prejudice in this case. She accepts that this would not be in the public interest. It is in the public interest for Transport Scotland, in common with other Scottish public authorities, to be able to procure services in a competitive market, thus securing best value for the public purse. To this end, while DML/CalMac may be in the anomalous position of being both in competition for such services and a subsidiary of the Ministers, it is also in the public interest for any supplier of a public service to remain commercially viable and capable of offering best value, along with its potential competitors on a fair and equal footing.
50. On balance, having considered the withheld information in the context of the submissions she has received, the Commissioner finds that the public interest in disclosing the requested information is outweighed by that in maintaining the exemption in section 33(1)(b) of FOISA. Consequently, she is satisfied that Transport Scotland correctly withheld the remaining information in terms of section 33(1)(b) of FOISA.
DECISION
The Commissioner finds that Transport Scotland partially failed to comply with Part 1 (and in particular section 1(1)) of the Freedom of Information (Scotland) Act 2002 (FOISA) in responding to the information request made by Storas Uibhist Limited (SUL). She finds that Transport Scotland was entitled to withhold information under sections 29(1)(a) and 33(1)(b) of FOISA.
However, the Commissioner also finds also found that Transport Scotland was not entitled to withhold other information (as described in paragraph 43) in terms of section 33(1)(b). She therefore requires Transport Scotland to provide SUL with this information, by 24 January 2014.
Appeal
Should either Storas Uibhist Limited or Transport Scotland 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.
Margaret Keyse
Head of Enforcement
10 December 2013
Appendix
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.
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(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.
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(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-
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(b) in all the circumstances of the case, the public interest in disclosing the information is not outweighed by that in maintaining the exemption.
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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.
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29 Formulation of Scottish Administration policy etc.
(1) Information held by the Scottish Administration is exempt information if it relates to-
(a) the formulation or development of government policy;
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(4) In this section-
"government policy" means-
(a) the policy of the Scottish Administration; and
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33 Commercial interests and the economy
(1) Information is exempt information if-
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(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).
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