23-24/49

I refer to your request for information dated 09 September 2023, which we have handled under the Freedom of Information (Scotland) Act 2002(FOISA).

As per your request, you asked for the following information:

I note that in your May 2018 Fitness to Teach Threshold Policy you introduced a clause stating that a referral might be considered frivolous or vexatious if it:

“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” and that subsequent versions of the policy have contained similar wording. Please could you provide all information that GTC Scotland holds relating to any consultation with any organisation or individual, about this specific change prior to introducing it in May 2018? Please be very careful not to include in your response any information that is outside the scope of my request – i.e. not information relating to consultation about this specific change.

We note that this request is substantially similar to a query within another request (FOI23-24/38) which you received a response to on the 5 September 2023. In it you asked the following:

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?

Both queries relate to a change in the Fitness to Teach Threshold policy of the General Teaching Council for Scotland (GTCS), specifically, including frivolous or vexatious criteria to determine if cases can be referred to GTCS for further consideration. Both queries ask for any documentation which GTCS holds in relation to any consultation about introducing this specific change. Both queries request documents on any consultation which was held prior to the change in May 2018 when this policy was put in place.

In our previous response, we indicated that GTCS does not hold this information as per section 17 of FOISA.

As your previous request is substantially similar to the current request we are refusing your request on the grounds that is repeated. This is because a reasonable period of time has not elapsed between the making of the initial and the subsequent request. As a result, neither the information nor the circumstances under which we responded to your request 22 working days ago has changed. The FOISA does not oblige us to respond to this request undersection 14(2).

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.

I refer to your request dated 7 October 2023 for a review of the response you received from my colleague on 6 October 2023 (FOI23-24/49) to your original information request addressed to a named individual on 9 September 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 obligations under the Freedom of Information (Scotland) Act2002 (FOISA). I have concluded that the original decision to refuse your request should be confirmed with modification.

Your original information request

In your original request you stated the following:

I note that in your May 2018 Fitness to Teach Threshold Policy you introduced a clause stating that a referral might be considered frivolous or vexatious if it:

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

and that subsequent versions of the policy have contained similar wording.

Please could you provide all information that GTC Scotland holds relating to any consultation with any organisation or individual, about this specific change prior to introducing it in May 2018?

Please be very careful not to include in your response any information that is outside the scope of my request –i.e. not information relating to consultation about this specific change.

We responded to your request for information on 6 October 2023 indicating that this was a repeated request and applied section 14(2) of FOISA. On 7 October 2023, you sent an email requesting that we review our decision under section 20(1) of FOISA.

Your internal review request

In your review request you state:

The request is not repeated and so Section 14(2) has been applied unlawfully.

It is true that the requests both refer to information about consultation on changes to the Fitness to Teach Threshold Policy.

However the requests clearly refer to information about consultation on different clauses of the Fitness to Teach Threshold Policy introduced at different times more than five years apart.

Your assertion that “Both queries request documents on any consultation which was held prior to the change in May 2018 when this policy was put in place.” is simply untrue in both respects. The earlier request relates to a change in 2023. The Fitness to Teach Threshold Policy was put in place in 2017 not 2018.

My current request refers to consultation on the introduction of the following words in May 2018:

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

This is at section 5 of the May 2018 version. My request makes it very clear that I am only asking about “this specific change” which is emphasised in bold.

The previous request was asking about the following words introduced in July 2023 – more than five years later: “Where we have identified an ongoing risk, we consider whether our FtT procedure will achieve the desired outcome and manage the identified harm or risk of harm. Our FtT procedure is not always the best place for a concern to be addressed – sometimes it needs to be taken forward by another agency or body”

This is at section 4 of the July 2023 version – a section about something else. Again I made it clear that the request was about that specific change.

Your following assertion is also untrue:

Both queries relate to a change in the Fitness to Teach Threshold policy of the General Teaching Council for Scotland (GTCS), specifically, including frivolous or vexatious criteria to determine if cases can be referred to GTCS for further consideration.

The previous request was about a clause which mentions nothing about the application of “frivolous or vexatious criteria to determine if cases can be referred to GTCS for further consideration”. It is in a different section of the Fitness to Teach Threshold Policy.

Since the two different changes were introduced five years apart it is obvious that any information about consultation for the changes would be entirely different and so application of S14(2) is unlawful.

As you mention in your review request, you have previously submitted a similar query (FOI 23-24/38) in which 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.” It is clear from your explanation above and from the original request that these relate to two different changes in policy, being 2018 and 2023. Therefore, the requests are not sufficiently similar under section14(2) of FOISA to constitute a repeated request. We apologise for this error in our response.

We have, therefore, again submitted your request for any records on consultation prior to introducing our Fitness to Teach Threshold Policy in May 2018 to relevant colleagues. They have indicated that they do not hold any records relating to this request and, therefore, we apply section 17 of FOISA as the information is not held.

As such, our original decision stands with the modification that we have instead applied section 17(1)(b) instead of section 14(2) of FOISA.

You state further that:

I regret that you have become involved in this situation. I think it would have been much better if senior officers had been clear and transparent from the outset that no consultation took place regarding either of the changes brought in five years apart - if indeed that is the case.

By way of explanation under our duty to provide advice and assistance under section 15 of the Act, there are a number of statutory regulators who will have a provision in their rules about ‘frivolous or vexatious’ matters. Within that context, there are also statutory regulators who do not define what constitutes a ‘frivolous or vexatious’ matter within their rules but who use their discretion, often through examination of the individual cases they receive, to decide what factors are relevant in making that decision (and in some cases produce complementary guidance to promote understanding of this). One such example would be the Scottish Information Commissioner’s guidance on frivolous or vexatious applications (p15) where they highlight the lack of a statutory definition and go on to use specific examples to illustrate their use of that determination.

Similarly, our rules themselves do not contain a definition of ‘frivolous or vexatious’. Our Threshold Policy, which is intended to aid understanding of how we make decisions in practice, sets out factors that could give rise to a frivolous or vexatious determination. We are not obliged by statute to produce the Threshold Policy and so we are not obliged to consult on it. I can therefore advise that we did not consult on this change to the Policy.

I hope that this has been of some assistance but if you remain dissatisfied with the response 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. www.itspublicknowledge.info/Appeal