The Scottish Information Commissioner recently held that the Scottish Executive did not have grounds to withhold information relating to its contract with Caledonian MacBrayne ferries for the provision of ferry services between Gourock and Dunoon.
The information was requested by Gordon Ross, Managing Director of Western Ferries (Clyde) Limited, which operated a competing Gourock-Dunoon service. He sought a copy of "the relevant document that overrides the Scottish Executive restrictions and permits or instructs Caledonian MacBrayne to provide peak sailings" between Gourock and Dunoon, and also financial details showing that the sailings were provided on a commercial basis.
Why was this information significant? The context was the relationship between CalMac and the Scottish Executive, and the basis upon which CalMac provided ferry services. The Scottish Ministers are the sole shareholder, and a shadow director, of CalMac, which provides lifeline ferry services over 26 routes in Scotland. As the company runs these services at a loss, the Executive provides a subsidy, in the form of an annual deficit grant. In exchange for this subsidy, CalMac undertakes to provide the agreed services, and not to end a service or change a timetable without the Executive's consent. These agreed services are restricted to prevent CalMac from undermining private companies, such as Western Ferries, with whom it is in competition. CalMac is permitted to carry passengers only, and is subject to timetable restrictions.
However, CalMac is also permitted to provide other, "out of undertaking" services, but to prevent the subsidy from "leaking" into these services, they are required to be profit-making. CalMac's transporting of vehicles, and the four sailings that it provided during peak hours, between Gourock and Dunoon, were provided out of undertaking prior to 2003, and should therefore have been profit-making. The peak sailings were brought under the undertaking—and thus became liable to subsidisation—in 2003. Mr Ross' request therefore dealt with historic information.
In refusing the request, the Scottish Executive maintained that releasing the information would "inhibit the free and frank exchange of views for the purposes of deliberation," in terms of s. 30(b)(ii), and would also prejudice the commercial interests of CalMac and the financial interests of an administration, in terms of s. 33(1)(b) and 33(2)(b) respectively. The Executive acknowledged that its reliance on the latter two exemptions might be somewhat questionable, given the age of the information, but wished to emphasise the commercial nature of the information.
The Scottish Information Commissioner stated that the threshold for s.30(b)(ii) is high: only if future communication will be rendered less likely, more reticent or less inclusive by disclosure should the exemption apply. In this case, the nature of the relationship between the Executive and CalMac was key—since CalMac was wholly owned by the Executive, it was exceedingly unlikely that any disclosure could lead to the breakdown of the relationship between the two. Nor was it likely that CalMac would in future refuse to provide the Executive with information, since the Executive was entitled to receive details of CalMac's activities. The exemption in s. 30(b)(ii) did not therefore apply. This was not to say that the relationship between CalMac and the Executive meant that no information could be protected under the Act—some information would be exempt due to its commercially sensitive nature, but in such cases the relevant exemption would be that contained in s. 33(1)(b).
The Commissioner then went on to consider whether that exemption applied in the present case, that is, whether release of the information requested would be likely substantially to prejudice CalMac's commercial interests. Since the information was limited, and of substantial age, it was held that it would not. It was "difficult to see what commercial advantage could be gained by a potential or existing competitor through access to this information today."
As for s. 33(2)(b), this was described as an important exemption, which is designed to protect the tax-payer from long-term financial loss caused by the disclosure of information. To rely on it, a public authority must demonstrate that they will be affected by the release of information to the extent that public spending levels or taxation will be altered. It was held to be extremely unlikely that the disclosure of the information requested by Mr Ross could impact upon the Scottish Executive in this way.
Since none of the exemptions relied upon by the Executive were found to apply, release of the information was ordered within 45 days.