24-25/85

I refer to your request for information dated 18 January 2025 (FOI 24-25/85) in which you asked for records related to two parliamentary questions which we have handled under the Freedom of Information (Scotland) Act (FOISA).

Within your request, you referenced two parliamentary questions on 21 December 2021 by Oliver Mundell MSP to which Shirley-Anne Somerville answered on 7 January 2022.

In S6W-05201 the question stated:

To ask the Scottish Government what its response is to reports that people who have referred concerns to the General Teaching Council for Scotland about professional standards have received a response indicating that, unless the referral has been subject to an employer investigation, it is considered "frivolous"

In S6W-05204 the question stated:

To ask the Scottish Government, in light of reports that there have been around200 cases referred to the General Teaching Council for Scotland in the last three years that were concluded as "closed after initial consideration", whether it is confident that there are no safeguarding or child protection matters included as part of those cases.

You have now asked for “a copy of all the information held by the GTCS with regard to the regular dialogue it has had with the Scottish Government about these known issues since this answer was provided to Oliver Mundell MSP”.

We requested clarification on 12 February to which you responded the same day. Thank you for providing us with your clarification.

Please accept our apologies for the delay in responding to your request. This is primarily as a result of resource challenges within the team, including periods of leave, which has resulted in a delay in providing a response. We apologise for this. 

We would highlight that we have interpreted the scope of your request as being a request for the correspondence with the Scottish Government about these issues since 7 January 2022 to the date of your request.

Please find the attached records labelled “FOI 24-25/85_Records” accompanying this response.

Please note that we have withheld documents labelled “Case Studies Part A”, “Case Studies Part B” and “Case Studies” in their entirety from this response under s30(b)(ii), 30(c) and s38(1)(b).

You will note we have withheld a portion of the above records as they are exempt under section 30(b)(ii) and section 30(c) of FOISA. These have been redacted in black.

Where the records have been withheld under section 30(b)(ii) this has been done as disclosure of them is likely to inhibit substantially the free and frank exchange of views for the purpose of deliberation.

There is clear public interest in the transparent operation of public authorities. As an organisation, we ensure that we make publicly available information relating to our Fitness to Teach process, including our Annual Report and our Insight Report to ensure accountability and transparency of our process. However, we consider that it is essential that public authorities may maintain a private space in order to exchange views for the purpose of deliberation, particularly in relation to live and/or developing matters for consideration.

GTC Scotland needs to be able to have free and frank exchanges and reflect consideration of matters in a private space so that these matters can be articulated, developed, discussed and tested. Disclosure of these records would be likely to substantially inhibit the exchange of views if colleagues and partners knew they could be disclosed under FOISA. We therefore consider the interest in withholding this information to ensure we maintain a private space for consideration and deliberation outweighs the public interest in disclosure.

We also consider that releasing the records would otherwise prejudice substantially, or be likely to prejudice substantially, the effective conduct of public affairs under section 30(c) of FOISA.

As stated, while there is a clear public interest in the transparent operation of public authorities it is necessary for their proper functioning that certain procedures be considered internally within a private space. Public authorities must ensure that they are enabled to  develop internal rationale and communicate with third party partners in a private space so that we can properly develop, discuss and revise these functions. We consider that it is essential that public authorities may maintain a private and confidential space in order to discuss and consider important areas of policy with key partners.To remove any such privacy and confidentiality from a public authority in order to properly develop and consider confidential matters would significantly inhibit the effective conduct of public affairs. We therefore consider the interest in withholding this information to ensure we maintain a private space for consideration and deliberation outweighs the public interest in disclosure.

Additionally,the records contain personal data of third parties, i.e. data that identifies them and relates to them, which we consider would be unfair to disclose to you and put into the public domain, as it would be beyond their reasonable expectations. I have therefore applied the exemption in section 38(1)(b) of FOISA, to withhold this information from disclosure to you, as it would contravene the first data protection principle in Article 5(1)(a) of the UK GDPR. These records have been redacted in red.

You may contact informationgovernance@gtcs.org.uk if you are dissatisfied with this response, 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 are view 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.

We refer to your request for a review (review request) dated 29 March 2025 of our response to your information request dated 18 January 2025 and clarified on 12 February 2025 (your information request), made under the Freedom of Information (Scotland) Act (FOISA).

In your information request, you requested information in the following terms:

“In late 2021 Oliver Mundell MSP asked 2 Parliamentary Questions –

S6W-05201 - To ask the Scottish Government what its response is to reports that people who have referred concerns to the General Teaching Council for Scotland about professional standards have received a response indicating that, unless the referral has been subject to an employer investigation, it is considered "frivolous".

S6W-05204 - To ask the Scottish Government, in light of reports that there have been around 200 cases referred to the General Teaching Council for Scotland in the last three years that were concluded as "closed after initial consideration", whether it is confident that there are no safeguarding or child protection matters included as part of those cases.

Shirley Anne Summerville responded on the 7 January 2022 with the same answer to both PQ’s - The General Teaching Council for Scotland (GTCS), as the Independent Professional and Regulatory Body for teachers in Scotland, has a published Fitness to Teach Threshold Policy which sets out what GTCS will investigate under its fitness to teach procedures. It is available on the GTCS website and members of the public are encouraged to read it prior to submitting a referral to GTCS regarding a registered teacher. The Scottish Government is aware of these issues and continues to have regular dialogue with GTCS on these matters.

I would like a copy of all the information held by the GTCS with regard to the regular dialogue it has had with the Scottish Government about these known issues since this answer was provided to Oliver Mundell MSP.”

In our response of 27 March 2025 to this request (our response), we provided you with information we hold in a recorded form falling within the scope of your request, but withheld some information on the basis of exemptions contained in either section 30(b)(ii), 30(c) or 38(1)(b) of FOISA. We explained why we had applied those exemptions in our response.

On 29 March 2025, you requested a review of our response to your information request. We have now undertaken this review, independently within GTC Scotland, by someone who did not deal with your information request.

In your review request, you expressed dissatisfaction with our response to your information request (in terms of section 20(3)(c)(ii)), focusing on what you consider to be the public interest in disclosing the information that was redacted from the documents otherwise disclosed to you under FOISA. We note that you refer to three factors giving rise to a public interest in favour of disclosing the withheld information, summarised below:

• You consider it to be in the public interest to disclose this redacted information under FOISA because of “concerns many have about the conduct of the GTCS when it comes to child safeguarding referrals made to them”.
• You note that you have concerns that a Scottish Government Minister may have misled Parliament with her response to safeguarding related concerns raised with her and that, if true, this would be a serious matter and you consider this it is in the public interest that you see the redacted information “to be sure of this”.
• You also do not believe that GTC Scotland has the right to have hidden free and frank conversations when it comes to child safeguarding, and state that why they would need this is of concern to you and “not in the public interest”.

Having considered all the relevant factors in respect of your information request and our response to it as part of this s21 FOISA review, we have concluded that we correctly applied the exemptions in sections 38(1)(b), 30(c) and 30 (b)(ii) of Part 1 of FOISA to information we hold within the scope of your request that was not disclosed to you. We therefore uphold our initial response of 27 March 2025 in that regard, for the reasons set out below.

Section 38(1)(b) FOISA

In relation to third party personal data that we withheld from you in our initial response (data that identifies people directly or indirectly and relates to them), we remain of the view that disclosing this information under FOISA, which means a disclosure into the public domain, would be unfair to them in terms of their expectations and the likely impact upon them, and thereby in breach of the first data protection principle set out in the UK General Data Protection Regulation (GDPR). This principle requires the processing of personal data to be fair, as well as lawful and transparent. Because of our finding in relation to fairness, it has not been necessary for us to consider whether a legal condition exists under Article 6 GDPR to disclose this personal data.

The result of our s21 review is therefore that the exemption in section 38(1)(b) of FOISA, when read with section 38(2A)(a), has been maintained by us in compliance with Part 1 of FOISA and in furtherance of our duties as a data controller under the UK GDPR and the DPA. This exemption is not subject to a public interest test under FOISA.

Section 30(b)(ii)

With regard to the information withheld from our response to your initial request, we have reviewed the application of the exemption in section 30(b)(ii) of FOISA to some of this information. We have carefully considered the content of each piece of information withheld from you under this exemption and whether its disclosure to you would substantially inhibit the free and frank exchange of views for the purposes of deliberation. The information withheld under this exemption is discursive or deliberative in nature, content and tone, views are expressed freely, and they form part of ongoing discussions within GTC Scotland, as well as between GTC Scotland and a number of public bodies with whom we seek to work in co-operation, in pursuit of the various functions of GTC Scotland and the other bodies. These include the Scottish Government and government agencies.

Having considered our response in relation to the application of this exemption, it is clear to us that the impact of disclosure of the limited communications we withheld from you under this exemption would significantly and adversely impact on the process by which GTC Scotland, Scottish Government and other bodies exchange views on issues which, by their very nature, require to be private. As you will understand from the information we did disclose to you, we have applied the exemption in section 30(b)(ii) only where such a private space is necessary at this time, and not in an arbitrary fashion.

In reviewing our application of the section 30(b)(ii) exemption, we have also re-examined the public interest in maintaining this exemption, balanced against the public interest in disclosing the withheld information covered by the exemption. An explanation of how we have applied the public interest test in respect of this exemption, and the exemption in section 30(c) below, is included towards the end of this review response.

Section 30(c)

We have reviewed the application of section 30(c) of FOISA to withhold some information from you in response to your information request. Having taken into account all the relevant information and considered matters carefully, on the basis of the content of each piece of information, we have decided that withholding this information from you was in compliance with Part 1 of FOISA.

The information in question, if disclosed into the public domain, would be very likely to undermine the ability of GTC Scotland to pursue actions that are intended to enable it to carry out its functions more effectively in relation to the protection of children and vulnerable people. Disclosure of the limited information in question would adversely

affect the ability of GTC Scotland to share information that supports and informs discussions within GTC Scotland, and between GTC Scotland and other public bodies. The nature of this information is such that we remain of the view that it falls within the scope of the section 30(c) FOISA exemption. It is information that needs to remain private because of the requirement to share information on a limited basis between various public bodies to support and inform ongoing discussions on key matters.

Such a safe space is required to share information that is necessarily as disclosive as possible between relevant parties to underpin the effective performance of their public duties and decision-making and so pursue the wider purpose of improving the protection of children and vulnerable people as effectively as possible.

In reviewing our application of the section 30(c) exemption, we have also re-examined the public interest in maintaining this exemption, balanced against the public interest in disclosing the withheld information covered by the exemption. Information as to how we have applied the public interest test to this exemption is set out below.

Public Interest

We note in your review request that your dissatisfaction with our response to your initial request is focused largely on your consideration of what is in the public interest. As you may be aware, guidance from the Scottish Information Commissioner notes that, whilst this is not defined in FOISA, the public interest has been described as something of serious concern and benefit to the public, not merely of individual interest, and something that is in the interest of the public, not merely of interest to the public. This means that disclosure of information should serve the interests of the public and involves a balancing exercise, recognising that there can be valid public interest considerations in favour and against disclosure of information into the public domain under FOISA.

Whilst we note your individual concerns about what you see as the conduct of GTC Scotland when it comes to child safeguarding referrals and we recognise that even individual concerns can express public interest considerations, in this case we do not consider that your concerns provide a strong public interest argument in favour of disclosing the limited information withheld from you under FOISA, as you do not provide evidence of the concerns of “many” that you seek to refer to in support of your argument.

You note in your review request that there is a public interest in disclosing the withheld information because you have individual concerns that a Scottish Government Minister may have misled Parliament over whether there has been dialogue between GTC Scotland and the Scottish Government on certain matters. You think it is in the public interest that you be able to see the redacted information “to be sure of this”.

We note that you have already been provided with copies of communications that confirm the existence of dialogue on a range of related matters between GTC Scotland and Scottish Government that appear to fall within the scope of your request. We do not consider that there is a public interest in you receiving withheld information for your stated purpose in this regard, particularly where disclosure would be likely to cause the harm referred to in our response above under section 30(b)(ii) or 30(c). However, to the extent that your ongoing concerns exist in relation to the conduct of a Scottish Minister, we note that there is a specific procedure by which you could choose to raise these under the Scottish Ministerial Code: Part A | Ministers' Standards of Conduct - Chapter 1: Scottish Ministers - Scottish Ministerial Code: 2024 Edition, without the need for further disclosure of the withheld information by us under FOISA.

With regard to your view that it is not in the public interest for GTC Scotland to have a right to “have hidden free and frank conversations when it comes to child safeguarding”, we note that GTC Scotland does not seek to claim some absolute right in this regard. Rather, GTC Scotland considers requests for information on a case-by-case basis and discloses information in so far as it can without causing significant harm to the kind of interests that were recognised by Parliament as requiring protection when it passed FOISA.

We wish to add that GTC Scotland recognises the importance of accountability and transparency, including in relation to its Fitness to Teach process. We make a wide range of information about our processes publicly available in a pro-active way. However, we consider there to be a very strong public interest in enabling the exchange of views between us, Scottish Government and other bodies, as well as the sharing of other relevant information, in a private space, in order to maximise the effectiveness of our joint endeavours to protect children and vulnerable people.

Overall, having balanced the public interest considerations in favour of disclosing the information that has been withheld from you, against the public interest in maintaining the exemptions in section 30(b)(ii) and 30(c), we remain of the view that the public interest in maintaining these exemptions outweighs the public interest in disclosure.

Finally, we note from your correspondence of 02 April that you received a different response to the same request, submitted to the Scottish Government. Please note that each Public Authority must respond to a request for information independently and we responded to this request in addressing “these known issues” referenced on 18 January 2025. We do not wish to make any correction.

If you are dissatisfied with this response to your review request, you have a right of application to the Scottish Information Commissioner under section 47 of FOISA within 6 months of this review response. The Scottish Information Commissioner’s guidance on making an application describes the process, including the application form. Further information, including relevant contact details is available on its website.

If you make an application to the Commissioner and are dissatisfied with the decision of the Commissioner in respect of that application, you have a right of appeal to the Court of Session on a point of law under section 56 of FOISA.