25-26/017

We refer to your request for information (FOI 25-26/017) dated 17 June 2025 which we have handled under the Freedom of Information (Scotland) Act 2002 (FOISA). Your request was for the following information:

Please provide a copy of all information held in relation to all correspondence over the past 3 months only between the Scottish Government, the First Minster's Office and John Swinney's Constituency Office with the General Teaching Council for Scotland. To include all letters, emails sent and received.

We have disclosed some of the information you requested as a record labelled “FOI 25-26-17-Records", attached to this response. However, we have also withheld some information from you under an exemption in part 1 of FOISA, as explained below.

Section 30(b)(ii)

We have redacted some information where we consider that disclosure would substantially inhibit the free and frank exchange of views between parties, where frank communications of a discursive nature have been entered into in these circumstances of necessity between parties engaging in regular communications and where disclosure of information in response to this request would be likely to have a ‘chilling effect’ in future communications. This information is therefore exempt from disclosure under section 30(b)(ii) of FOISA. Where information has been redacted under section 30(b)(ii), this has been marked in green.

Section 30(c)

We have also redacted some information not covered by section 30(b)(ii) but where we consider that disclosure of certain would have a significantly prejudicial impact on the ability of GTC Scotland and third parties to conduct their affairs. The conduct of affairs includes performing public functions, including joint working on projects whose success will serve the public interest and on matters of public importance. Although we have disclosed as much information between parties in communications falling within the scope of your request, we consider that an element of private space needs to be respected in order to ensure that parties feel that they can share certain information in terms of future joint working. This information is therefore exempt from disclosure under section 30(c) of FOISA. Where information has been redacted under section 30(c) this has been marked in blue.

Both of these exemptions in section 30 of FOISA are subject to a public interest test, which is considered below.

Public interest test

We consider that there is a public interest in GTC Scotland and other public authorities operating in as transparent a manner as possible on projects of public importance such as those documented in the information you have requested. We note that the bodies whose interactions are recorded in the information you have requested have engaged in a range of stakeholder consultations on the matters and the information we have provided to you records the inputs and outputs to those consultations. This reflects a significant element of transparency to date in terms of disclosing information into the public domain on these matters. However, if the various interactions, projects and initiatives documented in the requested information are going to succeed in achieving their aims, the integrity of the interactions does require to be frank in both what information is exchanged and how opinions are shared.

We consider that there is a strong public interest in both ensuring the integrity of interactions going forward in these projects, as a key element in ensuring the sustainability and overall success of some important initiatives. For that reason, where we have applied the exemptions in section 30(b)(ii) and 30 (c) of FOISA, we consider that the public interest in maintaining these exemptions outweighs the public interest in disclosure of the information that has been withheld.

Section 38(1)(a)

Where the information contained in the documents is your personal data, we have withheld this from you under the exemption in section 38(1)(a) of FOISA, as it is absolutely exempt from disclosure into the public domain under FOISA. However, if you wish to request your personal data, please let us know and we will treat this as a subject access request under Article 15 of the UK GDPR. This exemption is not subject to a public interest test under FOISA.

Section 38(1)(b)

We have also withheld some information from disclosure to you because it is third party personal data that identifies living individuals directly or indirectly, that relates to those individuals, and where we consider that disclosing this information into the public domain would be beyond the reasonable expectation of those individuals. Such disclosure would in our view be unfair, and thereby unlawful in terms of the data protection principle of fair, lawful and transparent processing contained in Article 5(1)(a) of the UK General Data Protection Regulation.

We have reached this view based on all the relevant facts and circumstances of the case in respect of each individual. This information has been withheld from disclosure to you under the exemption contained in section 38(1)(b) of FOISA, read with section 38(2A)(a). This exemption is not subject to a public interest test under FOISA. Where information has been redacted under section 38(1)(b), this has been marked in black.

Advice and Assistance

By way of reasonable advice and assistance, we note that some of the information contained in emails that we hold in the form of chains of communication make reference to attachments. Where we have established that we hold these our attachments through our search, we have included these in the scope of the information falling within the scope of your request. However, in a number of cases our search indicates that we do not hold these attachments as they have not been saved in the chain of emails saved onto our systems.

Right to review and appeal

You may request a review of how we have dealt with this information request if you are dissatisfied with this response. This can be done by contacting us at informationgovernance@gtcs.org.uk, describing your original request and explaining the basis for your dissatisfaction. 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.

We refer to your request of 06 August 2025 that we review our initial response of 01 August to your information request dated 17 June 2025, which we have handled under the Freedom of Information (Scotland) Act 2002 (FOISA). 

Your information request:

“Please provide a copy of all information held in relation to all correspondence over the past 3 months only between the Scottish Government, the First Minster's Office and John Swinney's Constituency Office with the General Teaching Council for Scotland. To include all letters, emails sent and received.”

Initial response:

On 01 August 2025, we responded to your request with a compilation of the requested records, some of which had been redacted under section 30(b)(ii) and section 30(c) of FOISA. On 06 August 2025, you sent an email requesting we review our decision in FOI 25-26/017 under section 20(1) of FOISA. You expressed dissatisfaction with our initial response to your information request in the terms below.

Review request:

This is a request for review of this FOI response.  I am very disappointed by the delay, the multiple copies of the same information, some of the formatting and the fee notice issued which was inaccurate.  Now I have seen the data I am struggling to believe it took almost 4 days to find and redact so please review this again to be sure it was accurate.  

As for the FOI itself there is no response to the email sent by the Head of the Education Workforce Unit to Dr Stephens and Ms Macdonald on the 17 June about the petition.  Can you please check again and confirm if there was one.  John Swinney told Peter Stewart Blacker, Chairman of Accountability Scotland during a meeting that he would write to the GTCS about matters raised by Mr Stewart Blacker.  Mr Swinney's staff confirmed to Mr Blacker Stewart that several letters were sent to the GTCS by the First Ministers office but I don't see any in this response.  Can you please check again or confirm that no such letters are held.  

With regard to 30 (b)(ii) and 30 (c) please review these again to ensure that there would actually be a "chilling effect" or significant prejudicial impact as claimed as I have my doubts there would be.

Review response:

We have undertaken a review of our initial response to your request, noting the points of dissatisfaction in your review. We have addressed these below and of course we are sorry that you were disappointed with aspects of our response.

Delay

The response to your request was due on 15 July. We sent an apology on 16 July explaining that we needed more time to redact documents before we could disclose information to you.  You contacted us for an update on 25 July, and we replied on 28 July explaining that there was a significant amount of information to review, and that we would provide a further update. We provided a substantive response to your requests on 01 August 2025.  

We apologise for the delay in issuing our response to you. This was due in part to staff absences and the volume of work generated by other information requests, but mainly because of the large volume of information that your request generated. This required substantive time and resources to be allocated to it by GTC Scotland.

Multiple copies/formatting

There is duplication in some of the records provided, and we recognise that this is less than ideal. However, we take a cautious approach to the removal of anything captured in our search when responding to an information request.  We would rather provide duplicate emails, for example within a chain or thread, than risk redacting information mistakenly or removing an email thread. Furthermore, given the volume of information yielded by the search for your request, removing duplicates manually would have caused further delay.

Fee notice

Please accept our apologies for the confusion arising from our fees notice. We acknowledge that this did not set out the first free £100, nor did it show the 10% payable. We will ensure that all fees notices set out this information clearly in the future.

Accuracy of time estimate

We are able to confirm that the time estimate for our fees notice was actually lower than the actual amount of time taken to deal with your request. When we issue a fees notice, it is based on an estimate, as we do not know exactly how long a request will take to deal with until that process is complete.

The compilation of records to deal with your request required the input of colleagues from multiple departments, including Policy, Leadership Support, Registration and Education Teams. In terms of time spent on the request, a considerable amount of time was spent by members of the Information Governance Team to compile the full set of records, review them, apply redactions to them and prepare and check the final bundle of documents for disclosure to you.

Although it cost us more than we estimated to deal with your request, this does not change the fee that you paid in this case, and we have borne the additional cost.  

Email response on 17th June

You can find the email you refer to as part of your request for review on page 822 of the bundle sent in our original response. We note there was a very minor inconsistency in our redactions, where the email from the Head of the Education Workforce Unit appears twice in the bundle, on pages 677-678 and 822. The job title is not redacted in the first instance on page 678. It is only redacted in the second instance on page 822.  

John Swinney Letter

In terms of section 17 of FOISA, we do not hold multiple letters from First Minister John Swinney’s office, and we do not hold any letters from him or his office in the requested timeframe of your request, being the three months prior to 17 June 2025. However, by way of reasonable advice and assistance under section 15 of FOISA, we can confirm that we received a letter from John Swinney three weeks after your information request was made, on 05 July 2025. Although this falls outwith the scope of your FOI request, we are attaching a copy for your information.  

We have applied redactions to this letter under section 38(1)(b) of FOISA, when read with section 38(2A)(a), only to remove information which might result in identification of an individual, where we consider this would be unfair by putting that personal data into the public domain under a FOISA disclosure.

Exemptions applied to initial request: upheld

We have reviewed our application of exemptions to your initial request, and we consider that we were correct in our application of section 30(b)(ii) to some of the information withheld from you and section 30(c) to the other information withheld from you. We have explained the reasons for our review response below.

You have expressed doubt that a chilling effect would apply in the instances where we have redacted information under section 30(b)(ii) and 30(c). We have reviewed our application of each exemption and have explained why we believe we were entitled to apply one or the other of these exemptions to the different information falling within the scope of your request surrounding the following topics, including in relation to the chilling effect, as set out in the table below:

• Accreditation arrangements of TQFE courses
• Collaboration with other public bodies after the Fitness to Teach rules review update
• IMI registration
• Anti-racism in schools draft guidance
• Report for Strategic Board for Teacher Education

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Public interest test

We have upheld the application of two exemptions in response to your review request – section 30(b)(ii) and section 30(c), for different parts of the information. Both of these exemptions are subject to a public interest test under FOISA, where we consider whether the public interest in disclosing the requested information that is covered by the above exemptions is outweighed by the public interest in maintaining those exemptions. We have therefore reviewed our application of the public interest test at this stage.

By way of reasonable advice and assistance, we note that the "public interest" is not defined in FOISA. However, it has been described (including in guidance of the Scottish Information Commissioner) as something that is of serious concern and benefit to the public, and not just something of individual interest to a member of the public. The public interest test requires us to consider what is in the interest of the public.

In considering relevant public interest factors, we have adopted a holistic or cumulative approach, whereby we have aggregated all the public interest factors we consider relevant, for your ease of reference. These are set out below.

In terms of the public interest in disclosing the requested information to you, we recognise that there is a general public interest in transparency in relation to decision making by a regulatory body and its interactions with senior policy makers in other bodies.  

However, as a member funded organisation that does not receive public money in support of our core functions, whilst we are committed to acting as transparently as possible, we must also fulfil our own requirements to act in the public interest and ensure that we remain in a position to perform all our regulatory functions, which sometimes requires a private space.  

There is a significant public interest in GTC Scotland being able to have some private space to engage in frank discussions on live and sensitive issues, both internally as part of our own necessary scrutiny of matters, and with third parties, including in this case the Scottish Government. It is in the public interest that agreement is reached and progress is made on some of the issues we are dealing with in relation to our statutory functions. If the detail of these ongoing discussions were to be disclosed, it could impact adversely on future exchanges on this matter, as well as frank exchanges on other matters, by substantially inhibiting how views are expressed.  

The same principle applies to the sharing of factual information as part of these exchanges. It is therefore not in the public interest for these exchanges to be placed in the public domain. Where we are in a position of discussing future regulatory arrangements internally or with third parties with a view to negotiating potential changes in approach, we need to ensure that the issues arising in such negotiations are not put into the public domain before parties have reached a view on how best to proceed, as this could result in public positions then being taken prematurely, that do not facilitate progress to the best possible outcome.

On balance, we therefore consider that the public interest lies in maintaining the exemptions in section 30(b)(ii) and 30(c) of FOISA to the information that we have withheld from you.

Conclusion

We trust that this review response has explained the circumstances of how we dealt with this request clearly to you, and that the attached record is of assistance to you.

Right of appeal

If you are dissatisfied with our review response, you have a right to apply to the Scottish Information Commissioner under section 47 of FOISA for a decision within 6 months of receiving this review response. You can obtain further information about how to exercise that right on the Commissioner's website at: https://www.foi.scot/appeal. If you remain dissatisfied following an application to the Commissioner, you have a right to appeal to the Court of Session on a point of law under section 56 of FOISA.