Agreement between Scottish Enterprise and Flamingo Land Ltd: FOI release (reference 4890)

16 March 2021

26 April 2021

I would like to request the full agreement reached (including any supplementary documents or appendices) between Scottish Enterprise and Flamingo Land Ltd, as described in Scottish Enterprise’s press release of 22 December 2020.

We have applied exemption Section 39(2) of FOISA as we determined that the information sought in this request is environmental information. We have therefore handled the request under the terms of the Environmental Information (Scotland) Regulations 2004 (EIRs). This is essentially a technical point that doesn’t affect the manner in which we have considered the request.

We confirm that Scottish Enterprise (SE) holds information within the scope of this request. A copy of the agreement, which comprises the missives for this land development, is attached. Though we have attempted to release as much information to you as possible, please be aware that some of the information has been withheld under regulations 10(5)(e) and 11(3A)(a) of EIRs. Where these regulations have been applied, the information has been redacted. It is SE's view that the release of the information would, or would be likely to, cause substantial harm to the legitimate economic interests of the developer, Flamingo Land (FL) and SE itself. Release of any personal information would be in contravention of the data protection principles. A full explanation as to why these regulations have been applied is as follows:

Regulation 11(3A)(a)

The exemption contained in Regulation 11(3A)(a) of EIRs has been applied to some of the information you requested, and that information redacted. 11(3A)(a) together with Article 5(1) of the GDPR creates an exemption from disclosure where the information requested constitutes the personal data of a third party and disclosure of that data would breach any of the data protection principles set out in the Data Protection Act 2018 (“DPA”). Article 5(1) states that “personal data shall be processed lawfully, fairly and in a transparent manner in relation to the data subject.” As an absolute exemption, there is no need to consider the public interest in the application of this exemption. SE is satisfied that the information that has been withheld constitutes the ‘personal data’ of the individuals concerned, as defined in section 1(1) of the DPA. SE has examined whether or not disclosure of the information you have requested, insofar as that is personal data, would breach the requirements of the first data protection principle.

Fairness

In assessing whether release of the information would be fair, we have had regard to the Scottish Information Commissioner’s Exemption Briefings and to guidance produced by the UK Information Commissioner, who has overall responsibility for data protection issues throughout the UK. In line with that guidance, and in coming to the decision to withhold personal data on the basis that it would be unfair to release it, we have taken into consideration:

• Any potential damage or distress which may be caused by disclosure of the information
• The seniority of the individuals’ positions
• Whether the information relates to the public or private life of the individual
• And the expectations of the data subjects with regard to the release of the information

We are of the view that release of the information would be unfair and in breach of the first data protection principle, therefore making it unlawful. Given that the disclosure would be unfair, and therefore unlawful, release would not comply with the first data protection principle, and as such it is not necessary to go on to consider any of the conditions in schedules 2 or 3 of the DPA 2018, or other aspects of lawfulness. The information must be withheld under Regulation 11(3A)(a), taken together with Article 5(1) of the GDPR.

Regulation 10(5)(e)

This exception is applicable whereby the disclosure of the information requested would, or would be likely to, prejudice substantially the confidentiality of commercial or industrial information, where such confidentiality is provided for by law or to protect a legitimate economic interest. Before engaging regulation 10(5)(e), we considered the following matters:

• (i) is the information commercial or industrial in nature?
• (ii) does a legally binding duty of confidence exist in relation to the information?
• (iii) is the information publicly available?
• (iv) would disclosure of the information cause, or be likely to cause, substantial prejudice to a legitimate economic interest?

In this case, the agreement concerns information that is confidential to SE and FL; and is of a commercial nature. This information is not in the public domain and is not generally accessible to the public. Relationships with private and public sector bodies are crucial to SE in meeting its overall objectives of furthering the development of Scotland’s economy. It is therefore critical that SE can maintain productive dialogue with those bodies to ensure we are able to support economic development as effectively as possible. SE’s engagement would be diminished if those parties were concerned that commercially confidential information may be disclosed in circumstances where it is not appropriate to do so and would cause harm. In our reliance upon the exception contained in regulation 10(5)(e), SE considered the four stage test as follows:

(i) is the information commercial or industrial in nature? The information comprises the content of concluded missives pertaining to a property transaction.

(ii) does a legally binding duty of confidence exist in relation to the information? Whilst the missives contain a confidentiality clause, SE appreciates this alone will not create a legally binding duty of confidence. However, taking the relevant criteria at common law in turn:

Necessary quality of confidence: Although knowledge of the existence of an agreement between SE and FL is in the public domain, the detailed legal missives are not. The information in question will only have been viewed by a limited number of individuals. The missives were clearly developed under circumstances from which it should reasonably have been inferred that their content was produced on a commercial in confidence basis. SE therefore considers the information has the necessary quality of confidence.

Obligation to maintain confidentiality: The information in question in this case has been received under an implicit and explicit obligation to maintain confidentiality in relation to the details of the missives. Such an expectation is normal legal practice in a transaction of this kind. Unauthorised disclosure would cause detriment: SE considers disclosure of the material would:

• Be to the detriment of the general public interest in confidences being maintained,
• Cause likelihood of commercial damage to the developer through disclosure of sensitive information, and
• Create a possibility that the developer’s competitors could analyse and identify the risk profile assumed by both SE and FL, to the future detriment of both.

(iii) is the information publicly available? The content of the missives is not publicly available.

(iv) would disclosure of the information cause, or be likely to cause, substantial prejudice to a legitimate economic interest? The transaction itself is live and ongoing. In addition, there are a number of suspensive conditions in the agreement, including those to which this definition pertains. Furthermore, the implementation of the proposals contained therein can only proceed with the granting of planning permission, a process which also remains ongoing. In this regard, whilst accepting that prejudice may diminish over time, given that the missives are “live” to a significant extent, a risk arises of substantial prejudice to the economic interests of both SE and FL, were the complete missives to be disclosed at this time.

Public Interest

We recognise that SE, as a public authority, has a duty to be open, transparent and to achieve best value. However, there cannot be a public interest whereby such transparency is to the detriment of a developer’s current commercial viability, caused by the release of its commercially confidential information. SE considers that there is a public interest in avoiding substantial harm to the legitimate economic interests of the developer and SE. There is a significant public interest in public bodies maintaining confidentiality and protecting the legitimate economic interests of commercial organisations where it has been agreed that information would be held confidentially. Disclosure would make SE less able to fulfil its duty to obtain value for money through the management of contracts, sales and economic development projects in the future.

Our conclusion is that the public interest in disclosure is outweighed by the public interest in avoiding substantial harm to legitimate economic interests. We do not consider there to be a public interest or benefit in releasing information which could have an adverse effect on the commercial interests of third parties. Allowing commercial parties to maintain confidentiality in their commercial positions is important to maintaining and supporting the proper and efficient operation of free markets, and is of serious concern and benefit to the public. As such SE consider that the public interest also favours the withholding of this information.

FOI.EIRs 4890 (PDF 3.3mb) opens in a new window