24-25/01

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of FOISA, when read with section 35(2)(b), and (d)(ii) of FOISA, applies to some of the information contained in the draft guidance.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.