Original request
Summary of request
Full request
Under FOISA, please could you send me copies of all outcomes of fitness [to] teach cases that have been published on your website during since 1st October 2016. Please provide exactly the information that was published on your website ensuring that no new information will enter the public domain. Should provision of this information be deemed too costly, please provide as much information as possible (chronologically with earlier dates preferred) starting from 1st October 2016.
Response
We refer to your request for information made under the Freedom of Information (Scotland) Act 2002 (FOISA) by email dated 3 October 2023. We recognise that the statutory deadline for this was 31 October 2023. As indicated in our email to you yesterday, we apologise for the delay in responding to you.
In your email dated 03 October 2023 you requested:
“Under FOISA, please could you send me copies of all outcomes of fitness [to] teach cases that have been published on your website during since 1st October 2016. Please provide exactly the information that was published on your website ensuring that no new information will enter the public domain. Should provision of this information be deemed too costly, please provide as much information as possible (chronologically with earlier dates preferred) starting from 1st October 2016.”
We have dealt with your request under FOISA and are withholding the requested information from you, as we consider that two exemptions apply under FOISA, as explained below.
Section 25(1) applies to the recorded outcomes of fitness to teach cases that are currently on our website at the time of your request for the three months preceding your request, as these are already reasonably obtainable by you and so exempt from requests under section 1 of FOISA by virtue of the exemption in section 25 of FOISA. You can access them in our recent decisions here. This exemption is not subject to a public interest test under FOISA.
In respect of your request for the outcomes of fitness to teach cases going beyond the last three months that are not contained on our website, we are withholding these from you under the exemption contained in section 38(1)(b) of FOISA read with section 38(2A)(a). That is because the requested information constitutes the personal data of third parties in that it identifies living individuals directly or indirectly and relates to those individuals. We consider that disclosure of this information into the public domain at the time of your request, which has the legal effect of a disclosure under FOISA, would be a breach of two of the data protection principles contained in Article 5 of the UK GDPR and therefore the section 38(1)(b) exemption must be upheld. This exemption is not subject to a public interest test under FOISA.
By way of further explanation, the principles that we consider would be infringed by disclosing the information you have requested into the public domain under FOISA are as follows:
- Article 5(1)(a) – which requires personal data to be processed lawfully, fairly and in a transparent matter in relation to the data subject (“fairness, lawfulness and transparency”); and
- Article 5(1)(b) – which requires personal data to be collected for specified, explicit and legitimate purposes and not further processed in a manner that is incompatible with those purposes; (‘purpose limitation’).
We do not have a statutory duty to publish the outcomes of fitness to teach cases. A decision in a fitness to teach case which has been subject to the entirety of the process and resulted in either a full public hearing or a consent order, is published on the GTCS website for a period of 3 months (noting that some of these decisions may be anonymised if an application in this respect has been successfully made).
The provision of access to the written outcomes reached in fitness to teach cases for a limited period of 3 months is based on our current Fitness to Teach publication policy, which you have cited in your request. The policy outlines the specific purposes underpinning such time-limited publication.
However, that policy also notes that we recognise the balance to be struck between publication of outcomes of cases and the risk that harm may arise from such publication, including in relation to individuals whose personal data is contained in the case reports.
As a data controller, we are required to comply with the Data Protection Act 2018 and the UK GDPR. In particular, we must ensure that our processing of personal data, including in response to FOISA requests, is fair and lawful, and is adequate, relevant and not excessive in relation to the purpose for which it is being processed. We are also committed to acting proportionately in terms of how we process personal data, including publication.
In particular, we do not routinely place all outcome information in the public domain in perpetuity, as we consider that such processing of personal data by us would be unfair by being beyond the reasonable expectations of individuals concerned and thereby unlawful.
We also consider that placing such personal data in the public domain in perpetuity would go beyond what is adequate and relevant to meet our identified purpose in undertaking a time-limited publication. We note that a disclosure under FOISA has the legal effect of placing personal data in the public domain in a way that is not time- limited and we have therefore concluded this would be unfair, unlawful and excessive in terms of the personal data comprising our Fitness to Teach decisions.
If you are dissatisfied with this response, you may request a review within 40 working days. To do so, please contact us at informationgovernance@gtcs.org.uk to request a review and let us know the basis for your dissatisfaction with our response.
If you request a review, please also provide details of any legitimate interests you consider you have in obtaining the personal data of third parties that you have requested, to assist us in the application of the exemption in section38(1)(b), i.e. to enable us to balance your interests in receiving this information against the interests or fundamental rights and freedoms of the data subjects whose personal data you have requested.
If you make a review request and you remain dissatisfied with our response to that review, you may apply to the Scottish Information Commissioner within 6 months for a decision under FOISA in respect of how we have responded to your information request.
I hope this information is helpful. If you are dissatisfied with this response, you may contact informationgovernance@gtcs.org.uk to request GTCS conduct 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.
Response file
Internal Review request
Summary of request
Full request
I request a review of the response on the following grounds:
Ground 1
You cite GDPR Article 5(1) a. However you have not taken into account that GDPR Article 6 defines lawful processing and makes it clear that processing is lawful “when processing is necessary for the purposes of the legitimate interests pursued by the controller or by a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child [my bold]”.
While the Article states that this point shall not apply to processing carried out by public authorities in the performance of their tasks, Section 38(5A) of FOISA specifically says:
“In determining for the purposes of this section whether the lawfulness principle in Article 5(1)(a) of the UK GDPR would be contravened by the disclosure of information, Article 6(1) of the UK GDPR (lawfulness) is to be read as if the second sub-paragraph (disapplying the legitimate interests gateway in relation to public authorities) were omitted”
In determining the lawfulness of providing the information I requested, you must therefore take into account my legitimate interests as a third party, because these legitimate interests make the processing lawful. As the Commissioner makes clear in his guidance: “When assessing whether a requester has a ‘legitimate interest’, it is good practice for public authorities to ask the requester why they want the information”. You have neither asked me, nor made any kind of consideration of whether I may have a legitimate interest.
The Commissioner’s guidance further states that “For most requests, however, there are likely to be wider legitimate interests, such as scrutiny of the actions of public bodies or public safety”.
I think it is clear that allowing access to the information I requested would allow public scrutiny of GTC Scotland, and thus contribute to the safety of children. It would also allow for the continuance of the legitimate interests stated in your policy document:
The publication of FtT information helps us to meet our statutory responsibilities and protect the public because it:
- helps educate the public and the profession about the standards expected of our registrants, helping maintain and uphold those standards;
- helps to maintain public confidence in the teachers that we regulate and GTCS as a professional regulator;
- allows employers and the public to know whether a Registrant’s registration is restricted in any way due to FtT concerns
Ground 2
You cite GDPR Article 5(1)b. However you have omitted to include the full text of that Article which states “further processing for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes shall, in accordance with Article 89(1), not be considered to be incompatible with the initial purposes”. It is therefore clear that allowing access to previously published information for any of these reasons would not be incompatible with the initial purposes. In any case you have previously published all of the information that I requested and therefore republishing the information could not reasonably be considered “further processing”.
Ground 3
You have not given any reasonable explanation of why GTC Scotland would find it acceptable to publish information on one day, and even one day later (if the three month cut-off had then been passed) would consider it unacceptable. You have also ignored my point about the reason for the time-limit given in your policy document points to a limit that is essentially arbitrary (how long people normally accessed the information for).
Ground 4
You have not responded to the points made in my request regarding the fact that all of the information I have requested has already been made public and will be available to some individuals who downloaded it at the time and may already be widely or even publicly available where it has been archived by others as you know happens.
Ground 5
You have not responded to my point that GTC Scotland has told Parliament that “Our FTT hearings and final case outcomes are public”. This statement creates an obligation to make them public as promised. It also demonstrates that it is GTC Scotland’s belief that making the final case outcomes public is lawful.
Ground 6
You have not considered the status of those whose personal data would be involved. These are largely teachers in positions of responsibility and the information is about them acting in their professional capacity, often with respect to the welfare of children in their care. This changes considerations of their rights to their personal information not being made public.
Ground 7
You have not considered that the original information made public on your website (which is all I have asked for) had already been processed to remove identifying information for many of the subjects affected.In some cases, where it was deemed appropriate, information was not published at all, I have not requested any information which was originally withheld.
Ground 8
You have not considered providing the information but with additional redactions.
Response
I refer to your review request dated 2 November 2023 in respect of our response of 1 November 2023 to your information request dated 3October 2023 (FOI23-24/48), for copies of all outcomes of fitness to teach cases published on our website since 1st October 2016. 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.
In your review request, you listed a number of grounds of dissatisfaction in relation to our application of the exemption for third party personal data contained in section 38(1)(b) of FOISA, read with section38(2A)(a) of FOISA. In our response to your initial request, we asked that, if you were going to seek a review, you provide us with details of any legitimate interests you considered you had in obtaining the personal data of third parties. I note that you have done that in your detailed review request.
I have now undertaken the review, including considering the grounds of dissatisfaction you have raised. I have also taken the time to consider carefully the interests you have articulated in the disclosure of the requested information to you under FOISA, balanced against the interests, fundamental rights and freedoms of the data subjects to whom the requested information relates, who are members or former members of the teaching profession in Scotland.
For the reasons set out below, I have decided to uphold our initial response to your request in relation to our application of the exemption in section 38(1)(b) read with 38(2A)(a) of FOISA and to withhold the requested information from disclosure to you under FOISA.
I 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.
In terms of fairness, I note that individuals whose personal data is contained in the reports will be aware that we do not have a statutory duty to publish the reports of fitness to teach cases. They will also be aware that, although our FtT Publication Policy (current version: 2017) states that the decisions of FtT panels will be published on our website after a full hearing has concluded, our Policy also states that this information will be removed from our website after 3 months. We consider that the teaching profession overall is not one that gives rise to a great expectation of publicity in terms of a person’s professional life.
We therefore 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, in many cases, some years after the data was withdrawn.
Our Policy does note that we will still consider requests for information contained in decisions in accordance with data protection and freedom of information legislation and we have taken a significant amount of time to do that with this request, as with other requests you have made. We have also considered the interests that you have articulated in your review request.
You state that allowing you access to the information you requested under FOISA would allow public scrutiny of GTC Scotland and thus contribute to the safety of children.
You also list as your legitimate interests the same purposes of publication that are set out in our FtT Publication Policy, which are provided in the context of our policy of publication of reports for the limited period of 3 months, because it:
- helps educate the public and the profession about the standards expected of our registrants, helping maintain and uphold those standards
- helps to maintain public confidence in the teachers that we regulate and GTCS as a professional regulator
- allows employers and the public to know whether a Registrant’s registration is restricted in any way due to FtT concerns, and
- allows people with an interest to attend hearings.
I have given careful consideration to your stated legitimate interest of allowing public scrutiny of GTCS and thus contributing to the safety of children. I consider that this aim is in fact achievable, and also to a greater extent, by a range of other means that are less intrusive than placing the personal data of those identified in outcomes of FtT cases in the public domain in perpetuity, by disclosing them under FOISA.
In terms of your stated legitimate interests as extracted from our Publication Policy, our Policy clearly states that a balance must be struck in relation to publication, that there is a risk that harm may arise from the publication of information and that, in order to comply with our duties as a data controller under data protection law, we must act proportionately in terms of publication of information.
I consider that the purposes above that you have incorporated in your request as legitimate interests in favour or disclosure, are actually achieved by disclosure of the requested information for the limited period of 3 months that applies under our Policy. We have concluded that publication in perpetuity would be disproportionate and excessive in order to achieve these aims.
In reaching our decision to maintain the s38(1)(b) FOISA exemption in respect of your request, we have acted in compliance with our duties as a data controller under the UK GDPR and the Data Protection Act2018,
If you are dissatisfied with our response to your review request, you have a right of appeal to the Scottish Information Commissioner within 6 months of this review response. The contact details for the Office of the Scottish Information Commissioner are set out below:
Scottish Information Commissioner
Kinburn Castle
Doubledykes Road
St Andrews KY16 9DS
Email: enquiries@ItsPublicKnowledge.info
Tel: 01334 464610
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.
Should you have any queries about how we have handled your review request, please use our dedicated FOI contact point informationgovernance@gtcs.org.uk, rather than sending your communications to different members of our team. This will enable us to deal with your communication more efficiently.
