24-25/76

I refer to your request for information (FOI 24-25/76) dated 6 December 2024 which we have handled under the Freedom of Information (Scotland) Act (FOISA).

In your request you requested, in relation to our response provided to FOI 24-25/52, the following:

• Let me know the date of the panel meeting where the application for cancellation was considered
• Provide a copy of the information previously published on your website about the outcome of the panel hearing that considered the application

I can confirm that the dates of the panel meetings were 18 April 2023 and 12 September 2023.

In relation to the outcomes requested, these have been withheld under s38(1)(b). As you are aware, this is a current live issue that is under consideration by OSIC in relation to decisions that are no longer on our website being considered personal data and our response to requests for such information from members of the public, where we do not consider their legitimate interests to outweigh those of the individual(s) involved.

We therefore maintain that position until we receive a determination from OSIC and withhold the outcomes, being inherently personal data of the individual(s) involved, under s38(1)(b).

While these decisions have previously been made available on our website, they were made so in line with our publication policy. Since the processing of personal data must be fair as well as lawful, we consider that we have an obligation to manage such information in ways that parties to the Fitness to Teach process would reasonably expect, unless we consider there to be a legitimate interest in the requester receiving that information that outweighs that of the individual(s) involved.

If you are dissatisfied with this response, you may contact informationgovernance@gtcs.org.uk to request GTC Scotland conduct a review of it. You should describe the original request and explain your grounds of review. You have 40 working days from receipt of this response 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 do so.

I refer to your request for a review dated 09 January 2025 of the response that we provided to your request for information dated 06 December 2024 (FOI 24-25/76). Thank you for providing further information on 07 February 2025 on the interests you have in receiving the information withheld under section 38(1)(b) of the Freedom of Information (Scotland) Act (FOISA).

You have expressed dissatisfaction with our response to your information request. To enable your review request to be considered afresh and by someone who has not responded to your original request, I have been appointed to undertake the internal review on behalf of GTC Scotland.  

Your original request

In your original request you asked for the following:

For each of the two cases referred to in this statement (those for which the application for cancellation cited the fact that 5 years had passed), please could you:

• Let me know the date of the panel meeting where the application for cancellation was considered
• Provide a copy of the information previously published on your website about the outcome of the panel hearing that considered the application

On 09 January 2024, we responded to your request by providing the dates of the panel meetings but withheld the panel hearing outcomes under section 38(1)(b) of FOISA. On 09 January 2025, you sent an email requesting we review our decision in FOI 24-25/76 under section 20(1) of FOISA.

Your internal review request

In your review request of 22 November, you state:

I request a review of your response as I don’t think that the application of s38(1)(b) is appropriate given that you have already (quite recently) put the information into the public domain. I believe that each case should be considered on its own merits, and that the citing of the live case with the OSIC is not appropriate as the factors will be different in this case which only requests two specific reports.

Please see our response to your review request below.

Our response

Please note that all published decisions beyond the three months established by the publication policy are subject to section 38(1)(b) of FOISA.

We consider that disclosing the requested information that is not currently published on our website would be unlawful in terms of the first data protection principle, which requires fair, lawful and transparent processing, and would also be excessive in terms of what is required for the proposed purposes of that disclosure, so the exemption in section 38(1)(b) of FOISA should be maintained. Our reasons are set out in more detail below.

We consider that, in terms of fairness, those whose personal data is contained in the requested information will not have a reasonable expectation that their personal data will be placed back in the public domain after cases have been concluded and the publication period has ended, both in 2023.  While we acknowledge that it may be possible to redact certain information from the decisions, the decisions are inherently the personal data of individuals concerned. Release of any such information, and together with the dates of the decisions as already provided through our original response, could identify the individual and therefore would be deemed to be personal data.  

When applying s38(1)(b) we must assess the balance of interests against the requester and the data subject. Thank you for providing your recent email setting out the interest in this information and the reasons why you are requesting the information that you have. We have considered all of the information you have provided. We understand that you consider you hold an interest in the information you have requested in order to ensure effective regulation and scrutiny in the work that we do. We further acknowledge that circumstances around certain cases in which you had an interest were personally challenging for you and this provides a personal and emotive perspective to your requests.

In particular, you indicate your interest in achieving transparency around the Fitness to Teach function and its decisions and processes. We recognise that this topic is significant to many people, including yourself, as this has been the focus of many of your requests under FOISA for some years. We accept that not everyone will agree with every decision we make and acknowledge that some may be dissatisfied with an outcome.

As an organisation, we are constantly looking for ways in which we can learn and develop our practices. As we have publicised, and as you will be aware, we have commissioned an external, independent review of our Fitness to Teach process. The Professional Standards Authority will publish a report later this year with its key findings.

I consider that effective regulation and scrutiny is in fact achievable by a range of other means that are more proportionate and less intrusive than placing the personal data of individuals, regardless of redaction, in outcomes of FtT cases in the public domain in perpetuity, by disclosing them under FOISA. In addition to the above mentioned review, GTC Scotland actively publishes information in relation to its FtT process, outcomes (in line with our publication policy) and additional assurance information through its annual report, strategic plans and news updates on its website.

Therefore, having considered your interests and that of the individuals whose data is being requested, as set out in our initial response, I remain of the view that your interest in this information does not outweigh that of the data subjects about whom you are seeking their sensitive, personal data. I do not consider that you have identified the reasons why you require the personal data, by way of decisions, of individuals in order to achieve your interest. As a regulator, we must strike a balance between ensuring transparency in the work that we do while also protecting the personal data of individuals, as necessary. The personal data contained within the records requires that we apply section 38(1)(b) of FOISA, as a responsible regulator and in line with our publication policy on the relevant records. I consider that the interest in protecting the personal data of the data subjects involved outweighs that of your interest in the information requested.

By way of advice and assistance, should you wish to resubmit a request for information in order to meet your interests without the inclusion of the personal data you have requested, we may be able to assist further. This may be, for example, statistical or other information that does not involve the disclosure of personal data into the public domain.

Finally, you note that we should consider Decision 231/2024 in which the Commissioner partially upheld a decision for a public authority which had withheld information. Within that decision, the Commissioner explains that “The Commissioner has examined the withheld information and accepts that the majority of it was not in the public domain. Some of the information that was withheld was (at the time of the request) – and still is - in the public domain.  The exception does not apply to the information that was in the public domain.” We consider this clarification relevant to our response as the information is no longer published on our website, nor has it been for over a year to 18 months. In contrast, the decision you refer to relates to information that was currently published on the authority’s own website at the time of the request and appeal.

Whilst information may be taken from our website by others during the publication period, as a responsible regulator, we can only control the flow of information through mechanisms we administer and cannot reasonably accept responsibility for personal downloads and global internet archiving. Whilst the internet can be a permanent place, GTC Scotland can only and must control the information it publishes to ensure it meets the requires of data protection legislation and ensure that is reasonable, fair and proportionate in the circumstances.

As such, I consider that our original response should be upheld and withhold the two decision notices referred to under s38(1)(b) of FOISA.

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 its website.  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.