Original request
Summary of request
Full request
I note that in your response to FOI request 23/24-64 published on your website you refer to an “internal Investigations Guidance document”.
Please could provide me with copies of all current and historical versions of this document and the dates (approximate if necessary) during which each of them was being used to guide the investigation process.
Response
I refer to your request for information (FOI 24-25/01) dated 3 April 2024 for a copy of a draft “internal Investigations Guidance Document” which we have handled under the Freedom of Information (Scotland) Act (FOISA). I note that you read an entry (FOI 23-24/64) on our Disclosure Log and have now submitted a request for the same information.
I also note that in addition to the information requested in FOI 23-24/64 you have asked for “all current and historical versions of this document” and the “dates(approximate if necessary) during which each of them was being used to guide the investigations process.”
I can confirm that there is only one version of the document which has been in existence since approximately 2020.
Section 30(b) and (c)
In our response to FOI 23-24/64 the exemption we cited in support of our decision not to release the internal guidance document was because to do so would inhibit the free and frank exchange of views for the purposes of deliberation (section30(b)(ii)).
We explained that while there is clear public interest in the transparent operation of public authorities, there is also significant public interest in GTC Scotland being able to develop internal guidance and procedure documents to support our investigations process. Disclosure of the guidance document, which is not in a finalised form, would prejudice that procedure.
Having given this matter further thought, we also consider that section 30(b)(i) also applies due to the purpose and format of the draft. It is primarily intended to assist Regulatory Investigations Officers – and so can be considered as the provision of advice under 30(b)(i) however it also has comments and queries from staff contained within it for the purpose of deliberation, hence our application of (30(b)(ii)).
Because of the nature of the work of the Regulatory Investigations team, we consider that section 30(c) also applies, as the effect of disclosure would not only be on the ability of the team to engage openly and freely in developing the document but on the integrity of the investigations process itself by putting information into the public domain that could be misunderstood or misinterpreted.
Section 35 – Law enforcement
We also consider that the exemption in section 35(1)(g) of FOISA, when read with section 35(2)(b), and (d)(ii) of FOISA, applies to some of the information contained in the draft guidance. That is because it is likely that disclosure of that information into the public domain under FOISA would be likely to prejudice substantially the exercise by GTC Scotland of its functions for the purposes of ascertaining whether a person is responsible for conduct which is improper, or a person’s fitness or competence in relation to the profession of teaching which that person is, or is seeking to become, authorised to carry on.
Section 38(1)(b) – third party personal data
The draft guidance also contains some personal data of third parties, which we consider would be unfair to put into the public domain, as it would be beyond their reasonable expectations and would not be reasonable or possible for us to notify them or seek their consent to disclosure. Such a disclosure would therefore also be unlawful in terms of the first data protection principle under Article 5(1)(a) of the UK GDPR. For that reason, we consider that it is not necessary to assess whether there is a legal condition for disclosure in Article 6(1) of the UK GDPR.
You may contact informationgovernance@gtcs.org.uk if you are dissatisfied with this response, to request GTC Scotland conducts a review of this decision. You should describe the original request and explain your grounds of review. You have 40 working days from receipt of this decision to submit a review request. When the review process has been completed, if you are still dissatisfied, you may use the Scottish Information Commissioner's guidance on making an appeal to make an appeal to the Commissioner.
Response file
Internal Review request
Summary of request
Full request
I request a review of the response below on the following grounds:
1. You have not provided a response to the request to provide “the dates (approximate if necessary) during which each of them was being used to guide the investigation process”.
As I explained in my emails of 3 May 2024 and 8 May 2024, a document might exist, but not be used to guide the investigations process at all times of its existence. It might, for example, exist but not actually be used to guide the investigations process until it has been approved by senior management. It might also be withdrawn from being used to guide the investigation process on some date, but still exist within GTC Scotland records. I hope you can see then that I cannot infer the dates that the document was used to guide the investigations process from the dates that the document has existed.
2. Section 30(b) (i):
Your use of S30(b)(i) is not as it was intended by Parliament. The purpose of this Section within FOISA is to allow advice to a decision-maker to be exempted to avoid the ‘chilling-effect’ that might occur should those giving advice by concerned that the advice to the decision-maker be made public. This case is quite different, it is guidelines from decision-makers (senior managers of GTC Scotland) to those conducting investigations – as you put it “to assist Regulatory Investigations Officers”. Your argument, if accepted, would mean that all guideline documents in any authority would be exempt, and this is clearly not the case. Additionally, Section 30(b) (i) provides a qualified exemption, and you have not clearly considered the balance of the public interest with respect to S30(b) (i) - you only consider this for S30(b) (ii).
The Commissioner’s guidance describes how the public interest test should be considered:
FOISA guidance - The public interest test in FOISA
4. Section 30(b) (ii):
You have said that 30(b) (ii) applied because of “comments and queries from staff contained within it”. However, if this were the case then the document could be disclosed with these comments and queries redacted. In any case, there is a tension between the statement that the comments and queries were for the purpose of deliberation , and the statement that the document is “primary intended to assist Regulatory Officers”, and the statements that disclosing the document would out in danger “the integrity of the investigations process itself” and “would be likely to prejudice substantially the exercise by GTC Scotland of its functions for the purposes of ascertaining whether a person is responsible for conduct which is improper, or a person’s fitness or competence in relation to the profession of teaching which that person is, or is seeking to become, authorised to carry on”. The latter statements imply a document that is, or has been, used to guide the investigations process, rather than a discussion document.
4. Section 30(c):
You have said that you have applied S30(c) because of the danger to the integrity of the investigations process itself of putting information into the public domain that could be misunderstood or misinterpreted. The danger of misunderstanding or misinterpreting by the public is never a reason to withhold information. Any danger of misunderstanding of misinterpreting should be mitigated by an authority providing adequate explanations to accompany any disclosure. This is made clear in the Commissioner’s guidance at paragraphs 22 and 23. You have not provided any case that S30(c) applies. Additionally, Section 30(c) provides a qualified exemption, and you have not clearly considered the balance of the public interest with respect to S30(c) - you only consider this for S30(b) (ii).
5. Section 35:
You have made a statement that disclosure would prejudice substantially the exercise of your fitness to teach functions but you have not explained why, as you are required to do. See for example:
FOISA guidance - Section 35: Law enforcement paragraph 9.
Your argument here seems to be that if the public knew how investigations were conducted then this would place at risk the integrity of your fitness to teach decisions. It appears that you believe that by keeping investigation guidance you can in some way reach safer conclusions. I believe that it is clear that an open and transparent investigations process can only benefit all involved and ensure that all parties have access to the information that they need to properly represent their interests.
Also please note that you are only including some statements in this exemption and any statements for which substantial prejudice could be properly be evidenced could be redacted.
Additionally, Section 30(c) provides a qualified exemption, and you have not clearly considered the balance of the public interest with respect to S30(c) - you only consider this for S30(b) (ii).
6. Section 38(1)(b)
I disagree with your statement that the conditions you cite make the disclosure unlawful under Article 5(1)(a) of GDPR. The lawfulness of processing is clearly defined by Article 6(1), and only one of the conditions needs to be satisfied. The lawfulness is satisfied by my legitimate interest in receiving the information. Even if this exemption did apply to some information, that information could be redacted. You have not made clear whether the information you refer to is truly personal (for example someone’s mobile phone number), or only indirectly personal – for example an opinion stated.
You have also referenced fairness, but not fully explored arguments related to this. My expectation would be that any statements made within the document would have been made by senior people with a reasonable expectation of public scrutiny, especially with respect to such important issues as fitness to teach processes.
Your argument that it is not reasonable or practical to contact the third parties is not evidenced. I would have expected that it would be likely that anyone considered important enough to comment on Investigations Guidance (for example the former Chief Executive) would be contactable by GTC Scotland.
Response
I refer to your request dated 27 May 2024 for a review of the response you received on 1 May 2024 to your original information request to GTC Scotland (FOI 24-25/01), dated 3 April 2024.
You have requested that the response to your original request is reviewed. To enable your review request to be considered afresh, I have been appointed to undertake the internal review on behalf of GTC Scotland.
Introductory comments
Having considered your review request, the response provided to you and the information held by GTC Scotland, I can confirm that my decision is to uphold the original response provided to you on 1 May 2024. I have provided some additional information and explanation in my response below to assist.
Primarily I wish to highlight that the Freedom of Information (Scotland) Act 2002 (FOISA) enables individuals to ask for any information from a Scottish public authority, provided it is recorded in some form. This does not include someone’s thoughts or opinions, unless they are recorded in some way.
Related to this, I note also that in the final points of your request you seek information ‘not strictly required by my information request’. Again, I would note that we are obliged only to provide you with recorded information in line with our statutory obligation. We should also provide (and, on review of the response, I see we have provided) advice and assistance where possible to explain to you that the information you requested is not held by GTC Scotland and why that is so.
Your review request
I will now take each of your points in your review request in turn.
1. In relation to point 1 of your review request you state:
You have not provided a response to the request to provide “the dates (approximate if necessary) during which each of them was being used to guide the investigation process”.
As you yourself have identified in your own emails of 3 May 2024 and 8 May 2024, a guidance document might exist, but not be used at all times of its existence. However, I would cite this is an accurate example of why it is impossible to provide information on when the document may have been accessed or used since its creation.
The only recorded information that we can provide, and have provided, in respect of the document is the approximate date that it was created. There is no recorded information concerning the dates that the document may have been accessed or used since then.
I therefore uphold the response provided to you on 1 May 2024; no further information is held by GTC Scotland in relation to your request.
2. In relation to point 2 of your review request, I uphold the application of the exemption in s30(b)(i) of FOISA - free and frank provision of advice. I consider that the exemption in section 30(b)(i) applies to the comments made on the document itself by individuals working within GTC Scotland.
As the document was created for internal use only by employees working within GTC Scotland, the guidance and comments therein provide advice and guidance to members of our Regulatory Investigations team on aspects of Fitness to Teach investigations based on the experiences of individual colleagues and the cases they have overseen, and sharing advice on lessons learned, in accordance with GTC Scotland’s statutory duties. Its purpose is to provide advice and support to colleagues who are carrying out an important role in a highly sensitive and confidential process.
If this internal advice and commentary were to be disclosed into the public domain under FOISA, there is a probability that it will cause those who are charged with the development of this or any subsequent guidance, to become restrained in their expression while undertaking this important task.
In relation to your comment regarding the lack of consideration of the public interest test, I note from the response provided to you on 1 May 2024, we balanced the public interest in “the transparent operations of public authorities” against the need to “develop internal guidance and procedure documents to support our investigations process.”. Given the structure of the response, I appreciate that it may be possible to infer that the public interest test had not been considered in relation to s30(b)(i) however, I assure you that the test was also taken into consideration in relation to s30(b)(i) (and as later discussed s30(c)).
Our consideration of the public interest test has been carried out in relation to s30(b)(i) and (ii). We have balanced the public interest in the transparency of public operations against the public interest in authorities being able to develop its processes through an iterative process and determined that the latter must hold greater weight in relation to this guidance document and the advice and commentary within.
3. In relation to point 3 of your review request, I uphold the application of s30(b)(ii) of FOISA - free and frank exchange of views for the purposes of deliberation. These comments, marked in the margins of the guidance, are discursive in nature and worded in free and frank terms giving feedback and views on the document, due to the expectation that they are for internal consumption only by relevant team members at GTC Scotland, to allow free and frank discussion about aspects of the guidance and how it might be developed.
The use of comments in the margin is an effective way to ensure that those referring to the guidance on a regular basis are able to see issues as they are being raised and recorded and have access to free and frank explanations of matters arising, which, if disclosed into the public domain under FOISA, would be certain to restrict the likelihood of this approach being used going forward, with the fear of the comments being taken out of context or potentially giving rise to legal risks for GTC Scotland.
In your review request you have indicated that these comments could simply be redacted, which would be practical if no other exemptions applied but taken together with the other exemptions set out in this and our previous response, there would be little to no content left to access.
4. In relation to point 4 of your review request, I uphold the application of s30(c) of FOISA - prejudice to the effective conduct of public affairs.
The guidance is, by necessity, written in a way that is very free and frank, with worked examples and used in various places throughout, providing details for the purposes of illustration that are not appropriate for publication under FOISA but are necessary for the intended users, due to the type of work that requires to be undertaken by them and the nature of some of the issues involved. It is a document created to support and advise our team at GTC Scotland to ensure that our team’s approach to the investigation process – about which information is freely and widely available to the public – is informed by experience and best practice as a quality control and improvement-based document.
The guidance is, in a sense, a living document that can be amended or added to over time, to ensure that those who refer to it in the course of their work have access to lessons learned and the most up to date information made available to them. It is a collation of that expertise and experience, through our confidential and highly sensitive Fitness to Teach process, collated on the understanding of strict confidence to enable internal learning and development.
If this were to be placed in the public domain by disclosing it to you under FOISA, we consider that there would be a reluctance to share factual details of experience gained from specific cases and so a more restrained, and less helpful, guidance would be developed over time. This would have a significant adverse impact upon our officers and solicitors who need access to unrestrained information where relevant, for the purpose of undertaking their functions in relation to Fitness to Teach investigations and learning lessons.
In relation to your comment regarding the lack of consideration of the public interest test, I note from the response provided to you on 1 May 2024, we balanced the clear public interest in “the transparent operations of public authorities” against the need to “develop internal guidance and procedure documents to support our investigations process.” Given the structure of the response, I appreciate that it may be possible to infer that the public interest test had not been considered in relation to s30(c) however, I assure you that it was and we concluded that the detrimental impact of releasing the document on our ability to effectively perform our statutory functions outweighed the benefit to the public due to the sensitivity of the information and the nature of the document.
5. In relation to point 5 of your review request, I uphold the application of section 35 of FOISA - Law enforcement.
We consider that GTC Scotland, as a statutory regulatory body, must be provided the opportunity to establish internal working practices to carry out its statutory function which is set out within s35; namely the exercise by a public authority of a function listed in section 35(2) and in particular 35(2)(b) “to ascertain whether a person is responsible for conduct which is improper” and 35(2)(d) “to ascertain a person’s fitness or competence in relation to (ii) any professional or other activity which the person is, or seeks to become, authorised to carry on”.
Disclosure of that information into the public domain under FOISA would be likely to prejudice substantially the exercise by GTC Scotland of its functions for the set out in s35(2), which are at the heart of what GTC Scotland does in relation to its Fitness to Teach work.
It is also possible that disclosing the guidance in relation to how regulation officers and solicitors approach highly sensitive and confidential Fitness to Teach investigations could leave that process open to manipulation in some instances and undermine the ability of GTC Scotland to undertake investigations that are of key importance in it being able to perform its statutory functions, for example, in relation to how evidence is gathered and assessed.
I accept that there was no specific reference to our consideration of the public interest test in relation to s35. Again, I can assure you that this test was considered, and I reiterate the position here. As above, we balance the clear public interest in the transparent operations of public authorities against the need to develop internal guidance and procedure documents to support our investigations process, particularly in line with s35(2). Our assessment is that the importance of retaining the confidentiality of this document, for the reasons set out above, is greater than that of the public interest in disclosure of this document.
We maintain that the Fitness to Teach process should be available for public scrutiny which is why we have published significant resources on the process as detailed below and evidenced by our Fitness to Teach Threshold Policy, Rules, Legal Assessor Rules and 14 different practice statements all dealing with the process including the investigation. We do not believe, however, that this should result in any and all confidential documentation held within the organisation, particularly that which provides advice and support to our investigative team in this instance, being disclosed in the public domain. We consider that this would more likely prejudice the process and do more to compromise the Fitness to Teach process than to protect it.
Furthermore, in terms of our transparency in relation to our decisions, we would point you to the considerable amount of information contained on our website about how we perform all our functions, including in relation to Fitness to Teach. This includes detailed information in relation to the meaning of Fitness to Teach, the Fitness to Teach process, details relating to upcoming hearings, recent decisions in FtT cases, Rules and Policies including FtT Rules, Legal Assessor Rules, FtT Threshold Policy, and FtT Publication Policy, Code of Professionalism and Conduct, Information for people involved in FtT cases and how to make a referral or recommendation. We also publish 14 different practice statements designed to help guide and inform best practice at hearings and promote GTC Scotland’s commitment to principles of fairness and transparency, as well as best regulatory practice.
6. In relation to point 6 of your review request, I uphold the application of s38(1)(b) of FOISA – third party personal data. The guidance contains some personal data of third parties, i.e. data that identifies them and relates to them. The document is a working document for all members of our Regulatory Investigations team and all members are invited to participate in the sharing of views, experiences and advice as skilled members of the team. We consider disclosure of this information to you and therefore into the public domain through this process to be unfair, as it would be beyond their reasonable expectations.
By being unfair, such a disclosure would therefore also be unlawful in terms of the first data protection principle in Article 5(1)(a) of the UK GDPR. For that reason (of unfairness), we consider that it is not necessary to assess whether there is a legal condition for disclosure to you in Article 6(1) of the UK GDPR. We do not consider that your interest in receiving this information outweighs that of the data subjects.
Therefore, for the reasons above, with some further explanation to assist you as far as possible, I uphold the initial response provided to you on 1 May 2024 in relation to this request and the information requested shall be withheld as originally confirmed to you.
If you are dissatisfied with this response to your review request, you have a right of appeal to the Scottish Information Commissioner within 6 months of this review response. The Scottish Information Commissioner’s guidance on making an appeal describes the process, including the application form. Further information, including relevant contact details is available on the website: www.itspublicknowledge.info/Appeal.
If you are dissatisfied with the decision of the Commissioner, following an appeal to the Commissioner, you have a right of appeal to the Court of Session on a point of law.
