Fee, Fi, FOI, fum: the tale of the FT’s inquiry into a Gupta guarantee

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It’s always intriguing when you get to view an organisation’s internal emails, particularly when they’re about you.

A recent Freedom of Information request made to the Scottish Government has yielded more than 100 pages of internal communications, revealing its discussions between staff about how it should deal with the final stages of a separate and long-running FOI battle with the Financial Times.

First made in early 2020, the FT’s FOI concerned the size of a 25-year taxpayer-backed guarantee provided by the Scottish Government to the business of metals magnate Sanjeev Gupta in 2016. The guarantee allowed Gupta’s family business to acquire an aluminium smelter in Lochaber, near Fort William, and two nearby hydropower plants from Rio Tinto.

Back then, the size of the guarantee hadn’t been disclosed and, a year later, it became a highly sensitive political topic as Gupta’s business was plunged into crisis following the collapse of Greensill Capital. Since, the UK’s Serious Fraud Office has launched an investigation into suspected fraud, fraudulent trading and money laundering at Gupta’s metals empire.

So, hoping to discover how much taxpayers could be on the hook for, the FT put in its initial FOI regarding the guarantee in February 2020. This was turned down, with the government citing commercial confidentiality. The FT’s request for review in April 2020 was rebuffed the following month.

Then in June 2020 the FT appealed to the Scottish Information Commissioner. Finally, in September 2021, after receiving submissions from the Scottish Government, the ICO ordered that the information should be disclosed to the FT.

The ICO’s reasoning (and bear with us, this nerdy detail is important) was that section 33(1)(b) of the Freedom of Information (Scotland) Act had been “misapplied” to the information. In other words, the Scottish Ministers were wrong to claim they had “commercial interests” to protect by withholding the information. They also failed to explain how revealing the information might allow other parties to calculate the commercially-sensitive information, the ICO said.

Which brings us back to the recently-disclosed batch of Scottish Government emails. These start on 29 September 2021, immediately following the ICO’s decision in favour of the FT, and run through to November, when the government finally disclosed the size of the guarantee — £586mn — to the FT.

One particularly intriguing email, sent on 29 September, reads as follows (emphasis added by the FT):

Here is the long-awaited decision in the Lochaber smelter appeal. Unsurprisingly, the Commissioner has not upheld our s. 33(1)(b) arguments, as we have been predicting since at least the review stage.

The email’s sender was redacted, although their job title was listed as Head of Policy and Casework in the Freedom of Information Unit. The three recipients were also redacted, although cc’d was Penelope Curtis, deputy director of elections and FOI.

From the above, it looks like the Scottish Government turned down an FOI at the review stage, and potentially earlier, while knowing that if taken to appeal at the ICO it was likely to lose.

Why it did this is not clear but it raises plenty of questions. Does the Scottish Government simply hold a different view of the definition of commercial interests to the ICO? Or did it know it was on shaky ground with its line of argument?

If so, did it adopt this tactic in the hope the FT would give up and not appeal, or was it simply a time-wasting tactic to delay the release of politically-sensitive information? Did members of the FOI team hold this view but were overruled? And has this happened with any other FOI requests?

A Scottish Government spokesman said: “The Scottish Government complied with the Scottish Information Commissioner’s decision and has disclosed the information requested.”

One other point that stands out from the emails is that the Scottish Government and Gupta’s GFG Alliance co-ordinated their responses to the FT. An email from a senior policy adviser in November 2021 begins “GFG has just given us a heads-up that the FT has been in contact with them”, before setting out the gist of the response Gupta’s metals-to-banking conglomerate planned to give to the FT.

The release of the size of the guarantee took nearly two years from the FT’s initial request, far longer than it should have done. The lesson for FOI-ers is clear — it is worth pursuing such requests as far as possible. Public bodies may be holding back information they know full well they should be disclosing.

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