23-24/38

I refer to your request for information dated 9 August 2023 which we have handled under the Freedom of Information (Scotland) Act 2002 (FOISA).

My colleagues from our Regulatory Investigations team have actioned this and I provide our responses below.‍

I noticed that you have introduced a clause saying that GTC Scotland will not investigate, even when a risk of harm had been identified, if GTC Scotland officers do not believe that the Fitness to Teach process will “achieve the desired outcome”, noting that “sometimes it needs to be taken forward by another agency or body”.

I find it difficult to imagine any situation where there is a risk of harm to children and where any other agency could provide the required continuing protection if, for example, a teacher changes employer. Please could you provide all documentation that GTC Scotland holds relating to any consultation with any organisation or individual, about this specific change prior to introducing it?

We do not hold any recorded information in relation to your request. I therefore apply FOISA exemption S17 – Information not held to this request.

Your current Fitness to Teach rules (which have been subject to consultation and approval) state that:Where GTC Scotland receives a referral, it will first be subject to initial consideration. The person giving initial consideration must refer the matter for investigation under rule 2.2 unless he/she decides:that it is not Relevant Conduct;that it relates to events that occurred 5 years or more before the date of the most recent event(or events) referred to and it is not in the public interest for it to be referred for investigation;that the referral has already been received and considered by GTC Scotland and rule 2.3.3(b)does not apply;that it is frivolous or vexatious; orwhere it has been made anonymously, or by a person who fails to co-operate with the initial consideration procedure(or similar), that the matter cannot be verified or the Teacher concerned is not identifiable.

Since the matter must be referred for investigation unless one of the five situations is present, please could you let me know which of the five the officer will be expected to use at the initial consideration stage in order to not investigate a case that they consider that the Fitness to Teach process will not “achieve the desired outcome”? I appreciate that FOISA only entitles me to recorded information, but it seems inconceivable that GTC Scotland would publish a Threshold Policy stating a new reason to not investigate without having put in writing (e.g. in internal emails or procedures) how this would be achieved in practice, lawfully under the approved rules.

The guidance from the Scottish Information Commissioner states “that FOI only applies to recorded information. It won't, for example, cover someone's thoughts or opinions, unless they've been recorded in some way.” Having considered the nature of your request, I take the view that the information you are seeking would be classed as opinion or explanation and no such information is recorded or held by GTC Scotland. I therefore apply FOISA exemption 17– Information Not Held to your request. For further clarity (FOISA exemption 15 – Provide advice and assistance), allegations referred for initial consideration will be dealt with by GTC Scotland on a case by case basis.

Please could you provide me with any information that is held by GTC Scotland demonstrating that not referring a case for investigation because officers consider it will not “achieve the desired outcome” would be lawful?

The guidance from the Scottish Information Commissioner states “that FOI only applies to recorded information. It won't, for example, cover someone's thoughts or opinions, unless they've been recorded in some way.” Having considered the nature of your request, I take the view that the information you are seeking would be classed as opinion or explanation and no information is recorded or held relating to this point. I therefore apply FOISA exemption 17 –Information Not Held to your request.

Please could you let me know what powers GTC Scotland has to ensure that matters are appropriately “taken forward by another agency or body” when GTC Scotland does not investigate?

The guidance from the Scottish Information Commissioner states “that FOI only applies to recorded information. It won't, for example, cover someone's thoughts or opinions, unless they've been recorded in some way.” Having considered the nature of your request, I take the view that the information you are seeking would be classed as opinion and no such information is recorded or held by GTC Scotland. I therefore apply FOISA exemption 17 – Information Not Held to your request. To provide further advice and assistance (FOISA S15), GTC Scotland powers in relation to Fitness to Teach are as set out in Part 3 of The Public Services Reform (General Teaching Council for Scotland) Order 2011.

 In your letter to Scottish Government Learning Directorate dated 25 February 2022, you said:

“The effectiveness of the current system for public protection patently relies on trust in employers. Employers must manage public protection issues locally, where these issues arise, and using the powers that they have available to them(including removal of a teacher from the classroom or working context pending investigation – a power that GTC Scotland does not have). The essential role of employers in this way seems well recognised: local authorities are named by the Scottish Government as one of the three key child protection agencies and are required to account for their child protection work and its effectiveness. There is a need to consider whether trust alone in this regard is providing assurance of public protection. There are current case examples where it is evident that this trust in employers has been misplaced, including City of Edinburgh and Scottish Borders Councils. The question remains about what ongoing regulation (not inspection) of education service providers takes place to ensure adherence to procedures and compliance. There is a further consideration of what action is taken by whom in circumstances where there has been a serious employer failure or wrongdoing”.

I hope you would not want to introduce any chance of a gap in protecting children. Given your new threshold policy, please could you provide any documentation indicating that GTC Scotland now considers that trust in employers is restored, or that the regulation of employers that you suggest above is now in place?

We do not hold any recorded information in relation to your request. I therefore apply FOISA exemption 17 – Information not held to this request. To provide further guidance and assistance (FOISA S15), GTC Scotland powers in relation to Fitness to Teach are as set out in Part 3 of The Public Services Reform (General Teaching Council for Scotland) Order 2011.

A previous version of the Fitness to Teach Threshold had a clause stating that one of the factors that could contribute to a determination that a referral is frivolous or vexatious was that the referral: “Has been made before the local or other more appropriate first points of referral have been used, for example the relevant Head Teacher, the school, the employing local authority (where applicable) and/or the police”.

Please could you let me know the date (as accurately as is known) when this clause was first introduced.

This clause first appeared in our Fitness to Teach Threshold Policy 2018 which was implemented in May 2018. This clause remains in our current Fitness to Teach Threshold Policy which was implemented in July 2023. I have provided a link to the current Fitness to Teach Threshold policy and attach a copy of the policy from 2018 in which the clause first appeared (FOISA exemption S15 – provide advice and guidance).

I hope this information is helpful. If you have any queries about any of the above or if you wish to complain about the way this request has been handled, please do not hesitate to contact me. You also have the right to ask us to review the decision or, ultimately, to appeal to the Scottish Information Commissioner.

I refer to your request dated 9 September 2023 for a review of the response you received from my colleague on 5 September 2023 (FOI23-24/38) to your original information request addressed to Pauline Stephen on 9 August 2023. To enable your request to be considered afresh and impartially by someone who had not responded to your original request, I was appointed to undertake the internal review.

I have considered your review request, the information you requested and our organisation’s freedom of information obligations. I have concluded that the original decision to refuse your request (with the exception of the last point) on the grounds that the information was not held by the organisation under section 17(1) of the Freedom of Information (Scotland) Act 2002 (FOISA) should be upheld.

Your original information request

In your original request you submitted multiple queries, namely:

1. You asked for all documentation that the General Teaching Council for Scotland (GTCS) holds relating to any consultation with any organisation or individual about a change to our Fitness to Teach Threshold Policy.
2. You asked which of the five criteria set out under Rule 2.1 of the current Fitness to Teach Rules an investigating officer will be expected to use at the initial consideration stage in order not to investigate a case they determine will not achieve the desired outcome.
3. You asked for any information demonstrating that the non-referral of a case which would not achieve the desired outcome would be lawful.
4. You asked what powers ensure matters are appropriately taken forward by another agency or body when GTC Scotland does not investigate.
5. You asked for any documentation indicating that trust in employers has been restored or that the regulation of employers is now in place in line with the new Fitness to Teach threshold policy.
6. You asked for the date on which the frivolous or vexatious referral test was first introduced by GTCS. We indicated that it was first introduced in May 2018 and provided a link to the current Fitness to Teach Threshold Policy in line with our obligation to provide assistance and guidance under section 15 of FOISA.

On 09 September 2023, you sent an email indicating that you request we review our decision under section 20(1) of FOISA.

Your internal review request

In your review request you state:

In some cases you have mixed up narrative about whether what I have requested is an opinion with narrative about whether information is held. Please therefore make it clear in each case what your grounds for not responding are so that I know what I need to appeal about.

For the avoidance of doubt, in terms of Section 17 of the Act, this review response represents a formal notice that information is not held in relation to points 1-5 of your original request. My colleague’s responses to points 2, 3 and 4 of your request sought to offer some explanation with reference to guidance from the Office of the Scottish Information Commissioner (OSIC) for why we do not hold the information that you requested. Specifically, she cited guidance from OSIC which states that freedom of information applies only to “recorded information. It won’t, for example, cover someone`s thoughts or opinions, unless they've been recorded in some way.” (Please note that there was a small numbering error in my colleague’s original response that I corrected to ensure that there is no confusion regarding the elements of your response I am referring to.)

We interpreted your request to be seeking information classified as an unrecorded opinion or explanation given that it asked for information on the discretion and judgment applied by individuals. In those instances, section 17 applies. For example, under the second point of your request, an individual will consider the specific circumstances of a case and if it should be referred for investigation. There is no expectation that an individual use any specific criteria as they will vary based on the circumstances of a specific case. Therefore, an individual’s unrecorded opinion on which of the five criteria is most relevant to a non-referral would not be information which could be released under FOISA.

You go on to state:

With respect to your response under point 4 below, I consider that this is a valid request for information and believe that GTC Scotland most likely does hold information within the scope of the request and that the searches have not been adequate. I request that you reconsider this response hav[ing] carried out appropriate searches (you might for example search correspondence and documents which mention lack of GTC Scotland’s powers in this respect).

I referred the matter back to the colleagues in our Regulatory Investigations team who conducted the searches required for your initial request and they have confirmed that we do not hold information related to your request. The further information that my colleague provided in her initial response on what our statutory powers are is relevant insomuch as we can only comment on what our powers in relation to our own functions are and who we pass information on to when we consider that a matter falls within the remit of another organisation to investigate. Once we have passed that information on, we have no authority to compel an organisation to take the matter forward.

I hope that this has been of some assistance but if you remain dissatisfied with the responses you have received, you have the right to appeal to the Scottish Information Commissioner. You must do so within six months of receipt of this 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.