RECORD keeping at the time the Scottish Government pushed ahead with the disastrous CalMac ferries contract was “inadequate”, officials have privately admitted. 

A memo obtained by the Herald about the so-called 'missing email' at the heart of the scandal reveals civil servants failed to abide by a “clear obligation” to store key files properly. 

It led to Transport Scotland staff being “reminded of the importance of maintaining accurate records and of their responsibilities under the Civil Service Code to do so”. 

The memo also indicates the Government might have found the missing email sooner if it had been quicker to use the powerful data software that finally discovered it.

One IT expert was “unconvinced that a full search” had been carried out in 2021, although they put this down to ignorance rather than mischief.

The missing email led to a bitter row and claims of “cover-up” last year when the Government was unable to produce the record of the ferry deal being approved by ministers in 2015.

READ MORE: Nicola Sturgeon denies disastrous CalMac ferries deal was 'jobs for the boys'

It was discovered just before a Tory debate on ferries, and showed then transport minister Derek Mackay agreed the contract, a move endorsed by deputy FM John Swinney. 

Material released under freedom of information suggests there was no cover-up, but the failure to store the file properly was seen as a serious blunder. 

The deal saw the state-owned ferry procurement body CMAL sign a contract with the Ferguson Marine yard on the Clyde for two CalMac ferries for a fixed price of £97million.

This was in spite of CMAL’s misgivings about Ferguson not providing an industry standard refund guarantee to protect taxpayers in case of problems with the boats.

The ferries are now five years later and more than £150million over budget; Ferguson Marine was nationalised in 2019 after going broke.

In December 2019, the Government began publishing documents relating to the contract in a bid to be transparent and ran electronic searches of its own records.

This led to the release of a memo dated 8 October 2015 in which officials asked Mr Mackay to sign off the deal after explaining the potential pitfalls.

HeraldScotland:

Although officials told CMAL the next day that approval was given, there was no record found of Mr Mackay’s decision or an explanation of why he went ahead despite known risks.

In 2021, the public spending watchdog Audit Scotland announced it was to look into the ferries deal, and the Government again searched its files and again failed to turn up any record of Mr Mackay approving the contract. 

In April last year, Audit Scotland told a Holyrood committee that it had received full cooperation from the Government but there was “just one piece of evidence that we have not been able to recover” - the record of the minister agreeing to proceed.

That led to a hue and cry at Holyrood, with opposition MSPs accusing the Government of shoddy record keeping at best, and “institutional corruption” at worst.

READ MORE: Nicola Sturgeon denies 'cover-up' over missing key ferries contract document

On April 28, Scottish Tory leader Douglas Ross raised the issue at FMQs, and said the claim the document could not be found was “laughable”.

He said: “Does the First Minister really expect anyone to believe that? Will she tell us where that crucial document has gone?”

Nicola Sturgeon agreed the file was about a “key decision”, but downplayed its absence by arguing its content could be inferred from other records.

She said: “What is missing is a note confirming that ministers have considered the issues and have decided to proceed. However, that decision is clear in all the surrounding documentation. There is one link in the chain that is missing, but one can still very clearly follow the chain of events.”

Later that day,  Transport Scotland asked the Government’s IT specialists to search again for the missing email, asking if there were any “additional steps that we could take to ensure as thorough a search as possible”.

 

The next day an email from one of the IT experts to colleagues said: “I remain unconvinced that a full search of all repositories was completed as part of the recent investigation into an Audit Scotland [AS] report. I am satisfied that it was not a deliberate action to avoid sharing the content with AS – the business area was unaware that e-discovery searches could be run using NUIX [digital forensics software] in the ungoverned repository space.” 

Late on May 10, the IT unit found the email, but this was only communicated to the key Transport Scotland official the following morning. 

The email was then rushed out in time for the Tory debate on ferries that afternoon.

In an added embarrassment, it later emerged the public document had been badly redacted, allowing anyone to read personal and legally privileged information in it.

In June, Frances Pacitti, director of aviation, maritime, freight and canals at Transport Scotland, who ordered the successful third data search, wrote a five-page post-mortem memo to the Government’s top official, permanent secretary John-Paul Marks.

In it she described the background to the “missing document” and lessons learned.

HeraldScotland:

She admitted: “It is clear that the record keeping at the time of the decision was inadequate. The responsibility for saving a record of Ministerial decisions is a clear obligation for all civil servants under the Civil Service Code. 

“There is a clear protocol that Ministerial private offices will not maintain records and that the responsibility to save a record of Ministerial decisions on eRDM (electronic records and documents management system) rests with officials in the relevant policy team. 

“This was not done on this occasion. Because the relevant staff members have since left the organisation, it has not been possible to conduct a full investigation into why the record was not maintained accurately on this occasion. 

“It is however of note that all other record keeping in relation to this project was accurate, and that it has been possible for interested parties to ascertain the basis on which key decisions were taken.  

“The failure to record one key decision does appear to be a (significant) exception to the good practice that was otherwise applied. 

“The fact that the record was capable of recovery following an e-recovery search does not purify that defect in record keeping, since the record was not easily accessible in the manner that it should have been, at the time that it was required.”

READ MORE: Permanent secretary calls for 'rigorous' record-keeping after ferries missing document

She said Transport Scotland staff had been “reminded of the importance of maintaining accurate records and of their responsibilities under the Civil Service Code to do so. 

“This has taken the form of all staff messages to staff in the Aviation, Maritime, Freight and Canals directorate for which I am responsible, discussions in monthly conversations with all members of division, and all staff messages in the Transport Scotland staff notice. 

“Staff have also been signposted to training and support where needed, to reinforce the culture of continuous improvement and robust record keeping that we expect to see applied.”

The NUIX software which discovered the email had not been available for use in the original 2019 search, but could have been used later.

Tory MSP Graham Simpson said: “This memo lays the blame for this particular chapter of the ferries scandal firmly at the door of the Scottish Government and its inept record-keeping.

“It’s not good enough that the public were kept waiting for vital paperwork that proved John Swinney gave the fateful Ferguson Marine contract the green light, while civil servants and SNP ministers scurried around trying to locate it.

“The fact that it took a more advanced software system to finally locate it suggests that the standard IT system isn’t up to scratch.”    

Liberal Democrat MSP Willie Rennie said: "While it is a relief that the missing document seems to have been a case of cock-up, not cover-up, the fact that the Scottish Government are describing their own record keeping as inadequate is a troubling one.

"It will offer little reassurance to prospective business partners, islanders or the wider public that multiple searches were required to turn up a document of significance to a deal worth hundreds of millions of pounds.

"The ferry fiasco has reflected badly on ministers at every turn. 

“There should be a full public inquiry to ensure that the key participants in this affair are forced to reckon honestly with the drama they allowed to unfold." 

A Transport Scotland spokesperson said: "While we recognise that record keeping of the decision – which dates back nearly eight years to 2015 – was not adequate, we have been completely transparent by publishing all related documentation, and have engaged extensively and proactively with Scottish Parliament inquiries and committee hearings in relation to Ferguson Marine.

“We have continued to improve our system of record keeping and document management and Transport Scotland staff have been reminded of the importance of maintaining accurate records and of their responsibilities under the Civil Service Code to do so.”