Dear Companies House,

Ferguson Marine Engineering Limited (company number SC485060)
Ferguson Marine Engineering (Holdings) Limited (company number SC485103)

2017 Annual Reports and Accounts

Please provide all correspondence between the above companies and Companies House relating to their 2017 Annual Report and Accounts.

These companies are continually late in filling their annual accounts. As of July 2019, these companies 2017 Annual Report and Accounts are seriously overdue.

I am requesting the information in the public interest. I believe that the failure to file accounts by these companies is a deliberate act in order to reduce public scrutiny of their financial affairs, the use of public money and the cost effective and timely delivery of two ferries.

In September 2017 and April 2018, Scottish Ministers granted these organisations publicly-funded loans totalling £45 million.

Caledonian Maritime Assets Limited (a company controlled by Scottish Ministers) has awarded these companies a £97 million contract for the construction of two ferries. The delivery dates for the two ferries at contract signing were May and July 2018. As at July 2019, delivery has stalled:

https://www.parliament.scot/S5_Rural/REC...

Yours faithfully,

Mr Paterson

Information Rights, Companies House

Dear Mr Paterson
Thank you for your email below.
The Information Rights Team is looking into your enquiry and will be in touch as soon as possible
Kind regards
Information Rights Team

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Dear Information Rights,

** Reminder **
Ferguson Marine Engineering Limited
Ferguson Marine Engineering (Holdings) Limited

This is a reminder that a response to my FOI request regarding the above companies is due. The legal backstop for a response is 19 August 2019. The response must take account of the extensive public interest arguments for disclosure in this case.

The management of these businesses have stated that they intend to place the companies in administration in the coming days. This has received extensive media coverage.

The companies have been in receipt of at least £83.7 million of public funds for the construction of two ferries that remain part completed and £45 million in government loans. Interest on the loans of £10 million also remains unpaid.

The failure of these companies to file accounts is reducing public scrutiny of it financial affairs and the use of public funds.

I look forward to receiving a response shortly.

Yours sincerely,

Mr Paterson

Information Rights, Companies House

Dear Mr Paterson

I refer to your request for information under the Freedom of Information Act 2000 (FOIA) in your email of 20 July 2019.
Your request concerns Ferguson Marine Engineering Limited (SC485060) and Ferguson Marine Engineering (Holdings) Limited (SC485103) and you asked for all correspondence between those companies and Companies House relating to their 2017 Annual Report and Accounts.

I am unable to comply with your request as I consider the information requested is exempt from disclosure by virtue of section 30(1)(b) FOIA.

The information is held for the purposes of considering whether to institute criminal proceedings that Companies House (CH) has the power to conduct. As you will be aware, CH has the power to institute criminal proceedings for offences under the Companies Act 2006. I am of the view that the confidence of the information should be maintained and that there is insufficient wider public interest in the disclosure of this information which would be to the public at large.

Some information falling within the scope of your request constitutes the personal data of third parties. I consider that it would be unfair to disclose this information under the FOIA and therefore that such a disclosure would breach the first Data Protection principle. My view is that this information is exempt by virtue of section 40(2) FOIA.

Additionally, I am of the view that section 41 FOIA is also engaged. This is because the information was provided to CH in confidence and there was no expectation that it would be disclosed to a third party. Again, disclosure under the FOIA is to the world at large and I believe that the provider of that information would not have expected their representations to be disclosed publicly.

If you are dissatisfied with the result of your request for information you may request an internal review within two calendar months of the date of this email. The case will be reviewed by a member of staff who has had no previous involvement in this case.

Please remember to quote the reference number above in any future communications.

If you are then not content with the outcome of the internal review, you have the right to apply directly to the Information Commissioner for a decision. Further information can be found at www.ico.org.uk

Yours sincerely

Information Rights Team
Companies House
This message and any attachments are intended for the persons named as addressees only and may contain confidential information. In addition they may be protected by copyright. If you receive it in error, notify us, delete it and do not make use of or copy it. You must not copy, disseminate or otherwise distribute or publish this message, except for the purposes for which this message is intended, without our consent. Please note that this e-mail has been created in the knowledge that Internet e-mail is not a 100% secure communications medium. We advise that you understand and accept this lack of security when e-mailing us. For company information, guidance and how to file documents online, please see our website www.companieshouse.gov.uk. For more details on how your personal data is handled by Companies House, please see our privacy policy: https://www.gov.uk/government/organisati...

Dear Information Rights,

REQUEST FOR INTERNAL REVIEW

Ferguson Marine Engineering Limited (FMEL)
Ferguson Marine Engineering (Holdings) Limited (FMEHL)

I am requesting an internal review of your response to my FOI request dated 20 July 2019 as I believe the response is unsatisfactory. As you have not provided your reference number for tracking purposes I am unable to quote a reference number for my original request.

You have withheld information for the following reasons:
Section 30(1)(b) ‘Criminal Proceedings’
Section 41 ‘Information provided in confidence’
Section 40(2) Personal data

I accept the decision to withhold relevant information under Section 40(2) Personal Data. However, I do not accept the decision to withhold information under sections 30(1)(b) and 41. Further, I do not believe that you are entitled to withhold all information relating to my request (as against to withholding selectively redacted information).

Information withheld under section 30(1)(b) ‘criminal proceedings’ and section 41 ‘information provided in confidence’ are qualified exemptions subject to the public interest test. In both cases, I believe the original response failed to set out proper consideration of the public interest arguments for disclosure, which are extensive, in this case.

There is a close connection between the First Minister of the Scottish Government and the director and ultimate controlling party of FMEL / FMEHL, Jim McColl. Jim McColl is a member of the Scottish Government’s Council of Economic Advisers. As a result, there is a potential for improper influence in the conduct of public affairs. This is an express reason for increased public scrutiny into the affairs of FMEL and FMEHL.

Caledonian Maritime Assets Limited (a company controlled by Scottish Ministers) awarded FMEL / FMEHL a £97 million contract for the construction of two ferries. This company has paid FMEL / FMEHL at least £83.7 million of public funds and Scottish Ministers have loaned these companies £45 million of public money. As at August 2019, the ferries are substantially behind delivery schedule and unpaid interest has accumulated on the loans totalling £10 million. Further, the directors of FMEL and FMEHL have given notice of placing these companies into administration within the next few days. I believe the withholding of the companies 2017 Annual Report and Accounts is preventing public scrutiny of the companies affairs and the use of public funds.

Please acknowledge receipt of my request for internal review.

Yours sincerely,

Mr Paterson

Information Rights, Companies House

Dear Mr Paterson
Thank you for your request for an Internal Review.
This will be conducted and a reply will be sent as soon as possible

Yours sincerely
Information Rights

From: Mr Paterson <[FOI #591102 email]>
Sent: 14 August 2019 14:03
To: Information Rights <[Companies House request email]>
Subject: Internal review of Freedom of Information request - Ferguson Marine Engineering Limited

Dear Information Rights,

REQUEST FOR INTERNAL REVIEW

Ferguson Marine Engineering Limited (FMEL) Ferguson Marine Engineering (Holdings) Limited (FMEHL)

I am requesting an internal review of your response to my FOI request dated 20 July 2019 as I believe the response is unsatisfactory. As you have not provided your reference number for tracking purposes I am unable to quote a reference number for my original request.

You have withheld information for the following reasons:
Section 30(1)(b) ‘Criminal Proceedings’
Section 41 ‘Information provided in confidence’
Section 40(2) Personal data

I accept the decision to withhold relevant information under Section 40(2) Personal Data. However, I do not accept the decision to withhold information under sections 30(1)(b) and 41. Further, I do not believe that you are entitled to withhold all information relating to my request (as against to withholding selectively redacted information).

Information withheld under section 30(1)(b) ‘criminal proceedings’ and section 41 ‘information provided in confidence’ are qualified exemptions subject to the public interest test. In both cases, I believe the original response failed to set out proper consideration of the public interest arguments for disclosure, which are extensive, in this case.

There is a close connection between the First Minister of the Scottish Government and the director and ultimate controlling party of FMEL / FMEHL, Jim McColl. Jim McColl is a member of the Scottish Government’s Council of Economic Advisers. As a result, there is a potential for improper influence in the conduct of public affairs. This is an express reason for increased public scrutiny into the affairs of FMEL and FMEHL.

Caledonian Maritime Assets Limited (a company controlled by Scottish Ministers) awarded FMEL / FMEHL a £97 million contract for the construction of two ferries. This company has paid FMEL / FMEHL at least £83.7 million of public funds and Scottish Ministers have loaned these companies £45 million of public money. As at August 2019, the ferries are substantially behind delivery schedule and unpaid interest has accumulated on the loans totalling £10 million. Further, the directors of FMEL and FMEHL have given notice of placing these companies into administration within the next few days. I believe the withholding of the companies 2017 Annual Report and Accounts is preventing public scrutiny of the companies affairs and the use of public funds.

Please acknowledge receipt of my request for internal review.

Yours sincerely,

Mr Paterson

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Dear Information Rights,

Ferguson Marine Engineering Limited
Ferguson Marine Engineering (Holdings) Limited

Thank you for acknowledging my request for internal review relating to the above companies.

UPDATE

Ferguson Marine Engineering Limited (SC485060) is now in administration as notified in The Edinburgh Gazette:

https://www.thegazette.co.uk/notice/3369...

I believe the legal back stop for a response to my request for internal review is Thursday 12 September 2019. In the event that you withhold information, your response must set out detailed consideration of the public interests arguments for and against disclosure.

Yours sincerely,

Mr Paterson

Phil Coates, Companies House

Dear Mr Paterson,

Good morning. My name is Phil Coates and I have been asked to conduct the
internal review into you recent Freedom of Information (FOI) request. By
way of introduction, I am a principal policy adviser working on the
Strategy and Policy Team in Companies House. I should also confirm that:

o I have had no previous dealings in this matter
o I have read all the papers involved with your application
o I am familiar with the relevant parts of the FOI Act

I note that you have asked to see all correspondence between Ferguson
Marine Engineering Limited (SC485060) and Ferguson Marine Engineering
(Holdings) Limited (SC485103) and Companies House (CH) relating to their
2017 annual report and accounts. I see that we have rejected your
application under 3 headings. I will take them in their sequential order
in the FOI Act.

 

1. We have refused to disclose the correspondence under 30(1)(b) of the
Act. This states that:

30.(1) Information held by a public authority is exempt if it has at any
time been held by the authority for the purposes of

(b) any investigation which is conducted by the authority and in the
circumstances may lead to a decision by the authority to institute
criminal proceedings which the authority has power to conduct,

The correspondence between the registrar and the company may lead to a
decision to prosecute the companies for the failure to file accounts and
is therefore exempt from disclosure. You have said that you do not think
we have properly set out our consideration of the public interest test.

I have considered the public interest in this case. I am satisfied that
while the conduct of the companies may be a matter of interest given the
public money that you refer to, I fail to see how disclosure of our
correspondence with them in our discussions relating to the filing of the
accounts is in the public interest. What serves the public interest in
this case is the fact that the companies’ failure to file the accounts is
a matter of public record. It can easily be ascertained by examining the
public record maintained by the registrar and seeing that the accounts
have not been filed.

That information about the failure to file the accounts may well be of
public interest and prompt people to make enquiries about the conduct of
the companies in other investigatory of regulatory quarters if
appropriate. However, I do not consider that the content of the
correspondence with the registrar relating to the filing of the accounts
is in the public interest. It is also relevant that the disclosure of the
correspondence to the public could jeopardise any future actions the
Secretary of State may take in respect of the failure to file the
accounts. That would be entirely wrong.

On this basis I conclude that the FOI Team has made the correct decision
in applying the exemption provided in section 30(1)(b) of the FOI Act and
has correctly applied the public interest test.

2. We have invoked the exemption under section 40(2) of the act in respect
of personal data. I note that you have accepted this.

3. Finally, we have invoked s41 which states:

41. (1) Information is exempt information if—

(a) it was obtained by the public authority from any other person in
confidence. (including another public authority), and

(b) the disclosure of the information to the public (otherwise than under
this Act) by the public authority holding it would constitute a breach of
confidence actionable by that or any other person.

In this case the companies and their representatives entered into
correspondence with the registrar relating to the filing of the accounts.
They did so with a legitimate expectation that the content would be
treated in confidence and not disclosed to the public, as it was a
confidential matter between them and the registrar. I find therefore that
s41 is engaged. My comments on the public interest aspect are the same on
this aspect as on the s30(1)(b) discussion above.

I conclude, therefore, that the FOI Team has made the correct decision in
applying the exemption provided in section 41 of the FOI Act and has
correctly applied the public interest test.

I can therefore find no grounds to change the decisions made by the FOI
Team. You are of course entitled to appeal against our decision to the
Information Commissioner if you are dissatisfied with it. This review
concludes my involvement with the case.

 

Yours sincerely

 

Phil Coates

 

This message and any attachments are intended for the persons named as
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may be protected by copyright. If you receive it in error, notify us,
delete it and do not make use of or copy it. You must not copy,
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the purposes for which this message is intended, without our consent.
Please note that this e-mail has been created in the knowledge that
Internet e-mail is not a 100% secure communications medium. We advise that
you understand and accept this lack of security when e-mailing us. For
company information, guidance and how to file documents online, please see
our website www.companieshouse.gov.uk. For more details on how your
personal data is handled by Companies House, please see our privacy
policy:
https://www.gov.uk/government/organisati...