Original request
Summary of request
Full request
Contained within the request.
Response
I refer to your request for information dated 7 October 2023 (FOI 23-24/51) which we handled under the Freedom of Information (Scotland) Act 2002 (“FOISA”).
As per your request you asked for the following information:
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 note that GTC Scotland has conceded that it has no authority to compel an authority to take an investigation forward and so it is clear that a potential gap in protection has been introduced.
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?
Please note that I am requesting information held and not seeking information classified as an unrecorded opinion or explanation. I say this as you have previously misinterpreted my request in this respect. Please note that although the request is substantially similar to the previous request Section14(2) does not apply because of your previous failure to interpret the request correctly, meaning that you answered a different 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:
(a) that it is not Relevant Conduct;
(b) 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;
(c) that the referral has already been received and considered by GTC Scotland and rule 2.3.3(b) does not apply;
(d) that it is frivolous or vexatious; or
(e) where 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. Please ensure that you carry out an appropriate search of such documents to see if the intended mechanism for lawfully rejecting such cases if mentioned anywhere.
Please note that I am requesting information held and not seeking information classified as an unrecorded opinion or explanation. I say this as you have previously misinterpreted my request in this respect. Please note that although the request is substantially similar to the previous request Section14(2) does not apply because of your previous failure to interpret the request correctly, meaning that you answered a different request.
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?
Please note that I am requesting information held and not seeking information classified as an unrecorded opinion or explanation. I say this as you have previously misinterpreted my request in this respect. Please note that although the request is substantially similar to the previous request Section14(2) does not apply because of your previous failure to interpret the request correctly, meaning that you answered a different request.
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?
Please note that I am requesting information held and not seeking information classified as an unrecorded opinion or explanation. I say this as you have previously misinterpreted my request in this respect. Please note that although the request is substantially similar to the previous request Section14(2) does not apply because of your previous failure to interpret the request correctly, meaning that you answered a different request.
We note that this request is nearly identical to a previous request you submitted (FOI 23-24/38) in which you asked for “all documentation that GTC Scotland holds relating to any consultation with any organisation or individual, about this specific change (to the July 2023 Fitness to Teach Threshold Policy) prior to introducing it?”
In our previous response (FOI 23-24/38) to you on 5 September we indicated that we did not hold any records in relation to the request and cited section 17 of FOISA as information not held.
You then requested a review of this decision on 9 September indicating that you believed we had not correctly interpreted section 17 and that we had not completed an adequate search for the information. We responded to your internal review request on 6 October indicating that we had considered your request in light of the guidance offered by the Office of the Scottish Information Commissioner and that we had again referred the request to our colleagues in our Regulatory Investigations team who confirmed that we do not hold any records related to your request.
We note that you have requested we reconsider your response as you are “not seeking information classified as an unrecorded opinion or explanation” and that Section 14(2) does not apply as “because of your previous failure to interpret the request correctly, meaning that you answered a different request.”
Please note that resubmitting a request which is identical to an initial request citing grounds for reconsideration is not consistent with the FOISA appeal process. If an individual requester is dissatisfied with a response under FOISA after receiving an internal review response they are entitled to approach the Scottish Information Commissioner under section 47(1) of FOISA.
Therefore, as your previous request (FOI 23-24/38) is substantially similar to the current request we consider this a repeated request under section 14(2) of FOISA and have applied it in this instance.
If you are dissatisfied with this response, you may contact informationgovernance@gtcs.org.uk to request GTC Scotland 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 on the following grounds:
You have said that the request that I submitted is identical to a previous request but this is not the case. The new request contains more detailed information to help you to interpret it correctly.
In response to the previous request you said:
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
And in the review response to the previous request you said:
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 anon-referral would not be information which could be released under FOISA.
However, for the purposes of this matter I have assumed that the responses to the previous request and review response were written in good faith and that you had genuinely thought that I was asked for “an unrecorded opinion or explanation”.
If this had been your genuine interpretation of my request then I concluded that the best way forward would be to submit a new and different request which made it clear that I was not requesting an unrecorded opinion or explanation but only recorded information. Given the clarity of my second request, there is no way that you could reasonably interpret “to be seeking information classified as an unrecorded opinion or explanation”. Therefore any reasonable interpretation must be different from that of the original request and so the two requests are not the same – there had been no repetition.
One reasonable test of whether a request is repeated under Section 25 is to consider whether the response would be the same. It is clear that a response to a request that stated clearly: “Please note that I am requesting information held and not seeking information classified as an unrecorded opinion or explanation” could not reasonably include the words:
We interpreted your request to be seeking information classified as an unrecorded opinion or explanation
Therefore the test of the response being the same is not passed.
What the Commissioner’s guidance says is:
Public authorities should not use the provisions in section 14 lightly. They should consider all the relevant circumstances in order to reach a balanced conclusion as to whether a request is vexatious or repeated.
Requesters must not be unjustly denied the opportunity to make a genuine information request. Requests may be inconvenient, and meeting them may at times stretch an authority's resources, but these factors, on their own, are not sufficient grounds for an authority to deem a request vexatious or repeated.
It is quite clear that I am making a genuine request for information (or notice that the information is not held). I have made every effort to comply with the law and to use precise language to help you to interpret my request correctly this time. I have also attempted to save the resources of the Commissioner’s office by submitting a more precisely worded request and allow you the opportunity to respond to it in good faith.
I appeal to you simply to respond to the new and different request rather than wasting everyone’s time by forcing me to appeal to the Commissioner.
Response
I refer to your request dated 2 November 2023 for a review of the response you received on 2 November 2023 to your original information request dated 7 October (FOI 23-24/51).
To enable your review request to be considered afresh and impartially by someone who has not responded to your original request, I have been appointed to undertake the internal review on behalf of GTC Scotland.
In considering your review request, I have considered the scope of the information you requested, our response to that request, your previous request(our reference FOI 23-24/38) and also our response to that request. I have also considered our organisation’s obligations under the Freedom of Information (Scotland) Act 2002 (FOISA).
I have decided that the original decision to refuse your request under section 14(2) of FOISA as a repeated request should be upheld without modification. Your information request FOI23-24/51 was a repeated request of your information request FOI23-24/38.
As you mention in your review request of 2 November 2023, you have previously submitted a substantially similar request (FOI 23-24/38) in which you asked six discrete questions regarding the Fitness to Teach threshold policy published in July 2023. In our response to that earlier request, we answered five of the queries by indicating that we held no recorded information under section 17 of FOISA and in one of the queries provided an indication of when a certain clause appeared in the policy. You also requested a review of that earlier response. The grounds you provided in that review request have now been repeated in your review request of 2 November.
In terms of our searches, we have already referred the matter back to our Regulatory Investigations team, who conducted a second search for records you requested and, having found nothing falling within scope, we notified you that we held no information in relation to points 1 to 5 of your original request.
In your current request (FOI 23-24/51), you have again submitted the same 5 discrete queries which are virtually identical to the previous request (FOI 23-24/38). Neither the information, circumstances nor the passage of time have altered in this case. You have not submitted a new request, but instead have repeated an old request with a request for a new response.
Were we to accept your position that this was not a repeated request we would have conducted four different searches for records which do not exist. We do not refuse to respond to requests on the grounds that they are repeated lightly. Considered in the overall context of the history of this request, we consider its current iteration to be manifestly repeated and hold no further information which would address your request for records.
As previously mentioned in our earlier response, the correct approach if an individual requester is dissatisfied with a response under FOISA after receiving an internal review response is to apply to the Scottish Information Commissioner under section 47(1) of FOISA.
I also note in your review request that you asked a member of staff to stop “wasting everyone’s time by forcing me to appeal to the Commissioner” by applying section 14(2). Please note that GTCS is a professional body whose staff are entitled to be treated with professionalism and courtesy in your dealings with them. I ask that you refrain from communicating with our staff in this manner as they carry out their functions.
GTCS staff have dealt with your request in accordance with FOISA and have not wasted anyone’s time. The tone and content of such accusatory and abusive comments would, in the view of any reasonable person, have the effect of harassing our staff. Also in this context, your repeated request could be construed as part of an extended campaign in pursuit of a grievance.
Dealing with your repeated request has imposed an unnecessary and disproportionate burden on GTCS in relation to information that is not held. Whilst we have not applied the exemption in section 14(1) of FOISA (vexatious requests) to your information request, given that it has been dealt with as a repeated request, I do consider that your request would also fall within the terms of the vexatious request if that exemption were to be applied.
If you are dissatisfied with this response to your review request, you have a right of appeal to the Scottish Information Commissioner within 6 months of this review 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.
If you are dissatisfied with the decision of the Commissioner, following an appeal to the Commissioner, you have aright of appeal to the Court of Session on a point of law.
