52A.1 Project Co acknowledges that the Board is subject to the requirements of the FOI(S)A and the Environmental Information (Scotland) Regulations and shall facilitate the Board's compliance with its Information disclosure requirements pursuant to the same in the manner provided for in Clauses 52A.2 to 52A.8.
52A.2 Where the Board receives a Request for Information in relation to Information that Project Co is holding on its behalf155 and which the Board does not hold itself the Board shall refer to Project Co such Request for Information that it receives as soon as practicable and in any event within five (5) Business Days of receiving a Request for Information and Project Co shall:
(a) provide the Board with a copy of all such Information in the form that the Board requires as soon as practicable and in any event within ten (10) Business Days (or such other period as the Board acting reasonably may specify) of the Board's request; and
(b) provide all necessary assistance as reasonably requested by the Board in connection with any such Information, to enable the Board to respond to a Request for Information within the time for compliance set out in section 10 of the FOI(S)A or Regulation 5 of the Environmental Information (Scotland) Regulations.
52A.3 Following notification under Clause 52A.2, and up until such time as Project Co has provided the Board with all the Information specified in Clause 52A.2(a), Project Co may make representations to the Board as to whether or not or on what basis Information requested should be disclosed, and whether further information should reasonably be provided in order to identify and locate the information requested, provided always that the Board shall be responsible for determining at its absolute discretion:
(a) whether Information is exempt from disclosure under the FOI(S)A and the Environmental Information (Scotland) Regulations;
(b) whether Information is to be disclosed in response to a Request for Information, and
in no event shall Project Co respond directly, or allow its Sub-Contractors to respond directly, to a Request for Information unless expressly authorised to do so by the Board.
52A.4 Project Co shall ensure that all Information held on behalf of the Board is retained for disclosure for at least the number of years (from the date it is acquired) [specified in the Board Policy relating to records retention156] and shall permit the Board to inspect such Information as requested from time to time.
52A.5 Project Co shall transfer to the Board any Request for Information received by Project Co as soon as practicable and in any event within two (2) Business Days of receiving it.
52A.6 Project Co acknowledges that any lists provided by it listing or outlining Confidential Information are of indicative value only and that the Board may nevertheless be obliged to disclose Confidential Information in accordance with the requirements of FOI(S)A and the Environmental (Scotland) Regulations.
52A.7 In the event of a request from the Board pursuant to Clause 52A.2, Project Co shall as soon as practicable, and in any event within five (5) Business Days of receipt of such request, inform the Board of Project Co's estimated costs of complying with the request to the extent these would be recoverable, if incurred by the Board, under Section 13(1) of the FOI(S)A and the Fees Regulations. Where such costs (either on their own or in conjunction with the Board's own such costs in respect of such Request for Information) will exceed the appropriate limit referred to in Section 12(1) of the FOI(S)A and as set out in the Fees Regulations (the "Appropriate Limit") the Board shall inform Project Co in writing whether or not it still requires Project Co to comply with the request and where it does require Project Co to comply with the request the ten (10) Business Days period for compliance shall be extended by such number of additional days for compliance as the Board is entitled to under Section 10 of the FOI(S)A. In such case, the Board shall notify Project Co of such additional days as soon as practicable after becoming aware of them and shall reimburse Project Co for such costs as Project Co incurs in complying with the request to the extent it is itself entitled to reimbursement of such costs in accordance with its own FOI(S)A policy from time to time.157
52A.8 Project Co acknowledges that (notwithstanding the provisions of Clause 52 (Confidentiality)) the Board may, acting in accordance with the Scottish Ministers Code of Practice on the Discharge of Functions of Public Authorities under Part 6 of the Freedom of Information (Scotland) Act 2002 (the "Code"), be obliged under the FOI(S)A, or the Environmental Information (Scotland) Regulations to disclose Information concerning Project Co or the Project:
(a) in certain circumstances without consulting with Project Co; or
(b) following consultation with Project Co and having taken their views into account,
provided always that where paragraph (a) above applies the Board shall, in accordance with the recommendations of the Code, draw this to the attention of Project Co prior to any disclosure.
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155 This should enable the Board to comply with its obligations under the FOI(S)A. If the Board wished to go beyond this, for instance by referring in addition to other information or to information held by first tier subcontractors on behalf of Project Co, this can be specified - but this may have cost/vfm implications.
156 Boards should ensure that the appropriate policy is in place.
157 It is up to the parties to decide whether costs associated with any future change in the Board's FOI(S)A cost recovery policy should go through Part 22 of the Schedule (Variation Procedure).
If the Environmental Information (Scotland) Regulations are relevant to the project, the parties may include broadly equivalent provisions in the Agreement dealing with costs and based upon the Board's policy towards reimbursement of such costs under Section 8 of the Environmental Information (Scotland) Regulations.