Sale of land at less than Market Value

Our ref: FoI/09/00176

12 February 2009

Dear Ms Logan

Thank you for your request dated 27 January 2009 for information under the
Freedom of Information (Scotland) Act 2002 (FOISA). The information you
require is not held by the Scottish Government. This is because the sale
of land and public buildings at East Market Street by Edinburgh City
Council to Mountgrange was not referred to the Scottish Government before
the sale took place.

You ask if the sale should have been referred to Scottish Ministers and I
should explain that under section 74 of the Local Government (Scotland)
Act 1974 the consent of Scottish Ministers is required if the sale or
lease of land is at less than best consideration that can reasonably be
obtained. It is for the local authority to decide if the sale or lease is
at less than best consideration and I believe Edinburgh City Council claim
the transaction between it and Mountgrange Ltd was a sale of land on a
fully commercial basis. This would explain why the council did not refer
the sale to Scottish Ministers for a decision under section 74. You will
be aware that the European Commission are currently dealing with a
complaint concerning Edinburgh City Council and the Caltongate
Development. It would be inappropriate for the Scottish Government to
comment on this matter.

If you are unhappy with this response to your request, you may ask us to
carry out an internal review, by writing to Andrew Goudie, Director
General Economy and Chief Economic Adviser, St Andrews House, Floor 4N.08,
Regent Road, Edinburgh. EH1 3DG. Your request should explain why you wish
a review to be carried out and should be made within 40 days of receipt of
this letter and we will reply within 20 days of receipt. If you are not
satisfied with the results of the review, you then have the right to make
a formal complaint to the Scottish Information Commissioner.

Yours sincerely

Christine Gresswell

Christine Gresswell

Policy Officer

Local Governance Team

Local Government Division

Scottish Government

phone : 0131 244 0410

email : [email address]

web : [1]http:/www.openscotland.gov.uk

address : Area 3-J North, Victoria Quay, Edinburgh, EH6 6QQ

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Your ref:FoI/09/00204

16 March 2009

Dear Ms Logan

Thank you for your request for information under the Freedom of
Information (Scotland) Act 2002 (FOISA) dated 16 February 2009. You also
ask why section 74 of the Local Government (Scotland) Act 1973 does not
apply in this instance. As explained in the response to your FoI request
dated 27 January 2009, it is for local authorities themselves to decide if
a disposal is at less than best consideration that can reasonably be
obtained. As also explained, I believe City of Edinburgh Council claim the
transaction between it and Mountgrange Ltd was a sale of land on a fully
commercial basis which would explain why the council did not refer the
sale to Scottish Ministers for a decision under section 74.

Your request for any correspondence between the council and the Scottish
Government/ Scottish Ministers which relates to the sale has been
considered. We do endeavour to provide information whenever possible.
However in this instance an exemption under Section 32(1)(a)(ii) of the
Act applies to all of the information requested.

Section 32(1)(a)(ii) refers to relations between the UK and an
international organisation or international court. The documents from City
of Edinburgh Council and email exchanges between the Scottish Government
and City of Edinburgh Council concern an ongoing complaint and
investigation by the European Commission (EC). This investigation is with
regard to the Caltongate project, where City of Edinburgh Council entered
into a commercial deal with Mountgrange Ltd concerning the sale of land.
In this instance, any documentation held by the Scottish Government should
be exempt from release since this could have a detrimental or negative
affect on the European Commission decision concerning the ongoing
investigation and is particularly sensitive at this time.

In addition an exemption under Section 33(1)(b) applies to all of the
information requested as its disclosure under this Act would, or would be
likely to prejudice substantially the commercial interest of any person
(including, without prejudice to that generality, a Scottish public
authority).

Since the information held by the Scottish Government relates to actual
commercial supporting documents from City of Edinburgh Council concerning
the ongoing investigation by the EC, and since these documents relate
specifically to the council's commercial practices and processes, it would
be extremely harmful if any information held by the Scottish Government
was released at this time.

As the exemption is conditional we have applied the public interest test.
This means we have, in all the circumstances of this case, considered if
the public interest in disclosing the information outweighs the exemption.
We have found that, on balance the public interest lies in favour of
upholding the exemption. This is because it would be detrimental to the
ongoing investigation by the EC and would be likely to provoke a negative
reaction at this time from the court and its decision because of the
sensitive nature of the information held.

Please note that once the EC has reached a decision on this complaint, the
documents involved will be available for public view.

I am sorry not to be able to assist you with your enquiry. If you are
unhappy with this response to your request, you may ask us to carry out an
internal review by writing to Andrew Goudie, Director General Economy, St
Andrews House, Floor 4N.08, Regent Road, Edinburgh, EH1 3DG. Your request
should explain why you wish a review to be carried out and should be
carried out and should be made within 40 days of receipt of this letter
and we will reply within 20 days of receipt. If you are not satisfied with
the results of the review, you then have the right to make a formal
complaint to the Scottish Information Commissioner.

Yours sincerely,

Christine Gresswell

Christine Gresswell

Policy Officer

Local Governance Team

Local Government Division

Scottish Government

phone : 0131 244 0410

email : [email address]

web : [1]http:/www.openscotland.gov.uk

address : Area 3-J North, Victoria Quay, Edinburgh, EH6 6QQ

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Our ref: FoI/09/00176

21 April 2009

Dear Ms Logan

Thank you for your email of 23 March. I am writing to confirm I was
requested by our Director-General for Economy & Chief Economic Adviser, Dr
Andrew Goudie, to carry out a review of our response to your request for
information under the Freedom of Information (Scotland) Act 2002 (FOISA)
regarding "sale of land at less than market value".

I have been asked to carry out the review because I was not involved in
handling your original request, and I have been looking at the case afresh
to establish whether your request was handled in accordance with our
procedures and legislative requirements.

I hope to reply soon, within 20 working days of your request being
received, with my decision.

Many thanks.

BILLY McLAREN

Head of Business Management & Support Team

European Structural Funds

Business, Enterprise and Energy Directorate

The Scottish Government

Tel: 0141 242 5800 Fax: 0141 242 5959

e-mail: [email address]

website: www.scotland.gov.uk/structuralfunds

23 March 2009

Dear Sir or Madam,

Please pass this on to the person who conducts Freedom of
Information reviews.

I am writing to request an internal review of Scottish Government's
handling of my FOI request 'Sale of land at less than Market
Value'.

A full history of my FOI request and all correspondence is
available on the Internet at this address:
[1]http://www.whatdotheyknow.com/request/sa...

As Mountgrange Caltongate has now gone into administration prior to
the conclusion of the sale of this land I would like you to review
your response.

Yours sincerely,

julie logan

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Our ref: FoI/09/00176

22 April 2009

Dear Ms Logan

Freedom of Information Request - review of FoI/09/00176

Further to my earlier email, I can confirm I have completed my review of
our response to your request made under the Freedom of Information
(Scotland) Act 2002 (FOISA) for "sale of land at less than market value".
I can confirm that the reply of 12 February 2009, from Christine
Gresswell, was properly handled, and the correct exemptions applied, at
the time of your original reply.

Papers held by the Scottish Government only relate to inquiries made by
the European Commission, following a complaint received concerning
Edinburgh City Council and the Caltongate Development. It remains the
case that to release the papers we hold on this matter would contravene
Section 32 (1) (a) (ii) relations between the United Kingdom and any
international organisation or international court.

The European Commission take a general view (of which I have some previous
experience) that there should be no release of papers, relating to ongoing
inquiries they are making, until they have formed a conclusion. It is
therefore the appropriate position for the Scottish Government to respect
this point of view, as long as the case remains ongoing. I have checked
again yesterday, before replying formally today, that no response has yet
been received by the European Commission at this stage. I would invite
you to keep in touch with officials on this matter who could consider
release after this point, but will also of course have to take into
account, at that point, any infromation requirements relating to the
release of papers when an organisation is in administration.

I hope you will find the information provided in this reply, from the
detailed review, helpful. However, if you are unhappy with the outcome of
this review you have the right to appeal to the Scottish Information
Commissioner about our decision within 6 months of receiving this letter.

You can contact the Commissioner at Kinburn Castle, Doubledykes Road, St
Andrews, Fife, KY16 9DS. The email address is
[1][email address] and the telephone number is 01334
464610.

Yours sincerely

BILLY McLAREN

Head of Business Management & Support Team

European Structural Funds

Business, Enterprise and Energy Directorate

The Scottish Government

Tel: 0141 242 5800 Fax: 0141 242 5959

e-mail: [2][email address]

website: [3]www.scotland.gov.uk/structuralfunds

__

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2. mailto:[email address]
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I have now left the Scottish Government (as of 28 August 2009).

If related to my new job I can be contacted at
[email address].

For all other emails please now re-direct to my successor, Paul Teasdale
([email address]).

For EUROSYS specific issues please email [email address].

Further details on contacting my fomrer colleagues and general information
can be found at: www.scotland.gov.uk/structuralfunds

Any enquiries and e-mails relating to a Freedom of Information request
should be re-directed to the following e-mail address where it will
receive attention - [email address].

Best wishes.

Billy McLaren

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