17 February 2022
Request for Information – ATISN 16020
I wrote to you on 28 January regarding your request for information.
A copy of all correspondence between the Welsh Government and Britishvolt in regards to opening a gigafactory in the Vale of Glamorgan from May 2020 until the end of December 2020.
I can confirm we hold the information relating to your request. I have concluded that the information requested is exempt from disclosure under Sections 43(commercial interests) and 41(information provided in confidence), of the Freedom of Information Act 2000. Full reasoning for applying these exemptions is given at Annex A to this letter.
If you are dissatisfied with the Welsh Government’s handling of your request, you can ask for an internal review within 40 working days of the date of this response. Requests for an internal review should be addressed to the Welsh Government’s Freedom of Information Officer at:
Information Rights Unit, Welsh Government, Cathays Park, Cardiff, CF10 3NQ or Email: Freedom.firstname.lastname@example.org. Please remember to quote the ATISN reference number above.
You also have the right to complain to the Information Commissioner. The Information Commissioner can be contacted at: Information Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow, Cheshire, SK9 5AF. However, please note that the Commissioner will not normally investigate a complaint until it has been through our own internal review process.
Section 41 – Information Provided in Confidence
Section 41 sets out an exemption from the right to know where the information requested was provided to the public authority in confidence and disclosure of the information would give rise to an actionable breach of confidence.
Section 41 states that:
(1) Information is exempt information if—
(a) it was obtained by the public authority from any other person (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.
The information contained in the correspondence, contains confidential and detailed proprietary product development plans; the configuration and implementation of manufacturing plans; identity of investors in respect of which Britishvolt owes separate obligations of confidentiality; information relating to key personnel that would represent a solicitation risk; confidential information related to customers; confidential information relating to methods of lowering carbon content in the supply chain;
As such the information is neither trivial nor is it, at this point in time, publicly accessible. The information was provided to the public authority in confidence. Britishvolt provided this information under the explicit obligations of confidentiality set out in the Memorandum Of Understanding(MOU) and to which the Welsh Government remains subject. Similarly information contained in the correspondence was provided to the Welsh Government on the explicit understanding that access to that information would be closely restricted. Britishvolt has not provided consent for us to make this information available to any party who asks for it.
Consequentially I believe that the information is owed a legal duty of confidence and that disclosure without consent would result in an actional breach of that confidence.
Section 41 is an absolute exemption and is not, therefore, subject to the public interest test.
Section 43(2) – commercial interests
Decisions relating to non-disclosure have been taken with due consideration of the exemption identified under Section 43(2), commercial interests, of the Freedom of Information Act 2000 (FOIA).
Section 43 is a qualified (public interest tested) exemption and in order to engage it, I must show that the public interest in withholding the information is greater than the public interest in releasing it. I have therefore given consideration to the effects of disclosure of the information to the world at large, as the information is made available to anybody and everybody, not just the requestor. As such, when considering your request I have considered the wider effects of disclosure rather than any personal interest you may have in being provided with the information.
Section 43(2) – commercial interests
The exemption states:
(2) Information is exempt information if its disclosure under this Act would, or would be likely to, prejudice the commercial interests of any person (including the public authority holding it).
The Welsh Government is of the view that revealing the information would be likely to prejudice Britishvolt should it be disclosed at this point in time. To reveal the information would be likely to prejudice their commercial interests should the information associated with this matter be disclosed. The information would reveal commercially sensitive information not otherwise publically available and which, if disclosed would be likely to prejudice the company’s service offering and future strategy.
Disclosing the information would give any competitors a distinct commercial advantage and stepping stone which would be likely to put the company’s own business at risk and therefore prejudice its ability to engage in future commercial activities. It would also undermine the company’s relationship with the UK Government and would be likely to affect their ability to obtain funding / investment including impacting on a current funding round. We do not believe that facilitating this type of unfair competitive advantage would be in the wider public interest.
Public Interest Test For Disclosure
The Welsh Government recognises the public interest in openness and transparency within government, particularly in terms of ensuring an accountable government by disclosing how the Welsh Government spends public money and that the money is invested wisely.
Public Interest Against Disclosure
Disclosure of this information would provide competitors with access to a level of information not otherwise available to them. This would be likely to enable competitors to obtain an advantage. We do not believe facilitating this type of unfair competitive advantage would be in the wider public interest.
For example, disclosure of information would allow competitors to understand and potentially copy its activities and service offering. To freely disclose the information would give any competitors a distinct commercial advantage and stepping stone which would be likely to put their business at risk and therefore prejudice the company’s ability to engage in future commercial activities. Britishvolt does not have access to similar information on its competitors as they do not publish it, so would be at a significant disadvantage. We believe the resultant harm should this information be released, would be substantial.
The information contains financial workings and supporting analysis that would constitute trade secrets, the disclosure of which would prejudice the firm's commercial or legitimate economic interests. I do not believe that facilitating this type of unfair competitive advantage would be in the wider public interest. I further do not believe there is a public interest in prejudicing the commercial interests of the company by the release of this information. Additionally there are a number of high profile companies referenced in the correspondence whose mention would also likely prejudice their commercial interests and reputation.
I am aware that, as a general rule, the sensitivity of information is likely to reduce over time; therefore the age of the information, or timing of the request, may be relevant in determining whether to apply an exemption, or where the public interest may lie. In this case, however, the information captured is very much current information. I believe therefore that the balance of the public interest falls in favour of withholding the information.