23-24/64

I provide a response to each of your requests below. Please note that where we have provided explanations these discharge our duty to provide advice and assistance under section 15 of FOISA.

Furthermore, where we have provided links to documentation, these have been provided under section 15 even though they are reasonably obtainable under section 25 of FOISA.

You asked for information related to guidelines for investigating teacher misconduct referrals. This topic is mentioned at multiple points on our website, however, it is more specifically referenced in our Fitness to Teach Rules, Fitness to Teach Threshold policy and investigations process. We also hold an internal Investigation Guidance document, however, FOISA does not require us to provide it as it is exempt under section 30(b)(ii) as its disclosure is likely to inhibit substantially the free and frank exchange of views for the purpose of deliberation. The reasons for this are explained further below.

There is clear public interest in the transparent operation of public authorities, and this is why we make our Fitness to Teach Rules, Threshold Policy and investigations process publicly available.

However, there is also a significant public interest in GTC Scotland being able to develop internal guidance and procedure documents to support our investigation process without the concern that these documents will be made public. We need to develop internal guidance and procedures in the light of changes and evolving regulatory practice in a private space so that we can develop, discuss,test and revise them continually. Disclosure of this guidance document and procedure while it is being developed and given that it will continually evolve would substantially inhibit that procedure. We also consider that the publicly available documentation referenced throughout this response provide the information required to understand how decisions are made in fitness to teach cases. In this case and for these reasons, we consider that the public interest in withholding this information outweighs the public interest in releasing it.

You also asked for information on what constitutes relevant conduct and how it is determined whether the threshold has been met for investigation. Again, this is defined at point 4 of our Fitness to Teach Threshold Policy and through our Code of Professionalism and Conduct.

You also asked for information and guidance on whether there is a public interest case for a teacher to be investigated following a misconduct referral and how this is determined. Again, this is mentioned at point 2 in our Fitness to Teach Threshold Policy and in our Code of Professionalism and Conduct.

You also asked for information and guidance on what is considered dishonest conduct by teachers and how this is assessed and determined as part of a GTCS referral. Again, this is mentioned at point 4 of our Fitness to Teach Threshold policy and through our Code of Professionalism and Conduct.

You also asked for the process that GTC Scotland must follow when a misconduct referral is made and how this differs if it is made by a member of the public. I can confirm that it does not matter who makes a conduct referral for the purposes of the process followed; all conduct referrals follow the same process set out in our Fitness to Teach Rules. With regard to your request on the process that must be followed when a misconduct referral is made, I have attached a Fitness to Teach process flowchart, a Frequently Asked Questions document on giving a statement to GTC Scotland and an information booklet for Referred Teachers. More information can also be found on our website in the Fact-finding in Fitness to Teach Conduct Cases Practice Statement and the Indicative Outcomes Guidance Practice Statement.

You also asked what information or guidance is held in relation to the balance of probabilities and how the GTCS determines if this bar is met or not to include how the GTCS does this when there are conflicting stories. The standard of proof requiring alleged facts to be proved on a balance of probabilities is mentioned under Rule 1.7.15 of the Fitness to Teach Rules. Further information about the burden and standard of proof as well as information about how evidence is assessed is set out in the Fact-finding in Fitness to Teach Conduct Cases Practice Statement. Regarding your query as to how Fitness to Teach cases are handled when there are conflicting statements, this is also mentioned in our Fitness to Teach Conduct Cases Practice Statement on page 3 which lists questions to consider when assessing the credibility and reliability of witness evidence.

Finally, you asked for all information the GTC Scotland holds with respect to teachers' ability to backdate pastoral notes and / or alter previously recorded pastoral notes. This process is administered by the SEEMiS Group which GTC Scotland has no responsibility for the management or administration of and as a result this is not in any of our publicly available documents. Whilst we do hold a SEEMiS Manual that explains how notes can be edited, FOISA exempts this information from disclosure under section 36(2) as it would breach a duty of confidentiality which we have towards a third party.

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.

I refer to your request dated 17 December 2023 for a review of the response you received on 14 December 2023 to your original information request to the General Teaching Council for Scotland (GTCS) (reference FOI 23-24/64), dated 15 November 2023, under section 1 of the Freedom of Information (Scotland) Act 2002 (“FOISA”).

You have expressed dissatisfaction in the following terms with our response to your information request, in terms of our decision not to disclose our Fitness To Teach (FtT)  Investigations Guidance to you under FOISA:

This is a request for review. I would like a copy of the internal investigation guidance documentation. I don’t see how a section 30(b)(ii) exemption applies to this information. I believe that I am entitled to it having obtain [sic] similar information from the SPSO without any argument whatsoever. Its also in the public interest that I obtain a copy of it because the GTCS in my option [sic] is not transparent with how it comes to its decisions. I am not the only person who thinks this so its important given the profession is self regulated that the public understands how decisions are actually made should they later want to challenge them.

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 GTCS.  

In considering your review request, I have also considered carefully the information you have requested and our response to your initial request in accordance with GTCS’s duties under the Freedom of Information (Scotland) Act 2002 (FOISA).

Review decision

I have decided that the original decision to refuse your request for disclosure of the information contained in the FtT Investigations Guidance (the Guidance) should be upheld, for the reasons set out below, including explanations as to why we consider at review stage that additional FOISA exemptions apply beyond those applied in our response to your initial request; and having given careful consideration to the public interest in disclosure, balanced against the public interest in maintaining the exemptions that apply.

For the exemptions applied that are subject to a public interest test under FOISA, an explanation of how the public interest test was applied is set out at the end of this response.

Section 30(b)(i) – free and frank provision of advice

I consider that the exemption in section 30(b)(i) of FOISA applies to much of the information contained in the Guidance, which was produced as a document intended for internal use only by the regulation officers and solicitors working with GTCS, providing them with advice and guidance on ways to approach various steps in the process of investigating Fitness to Teach cases, in accordance with GTCS’s statutory duties.

The Guidance is, by necessity, written in a way that is very free and frank, with worked examples and used in various places throughout, providing details for the purposes of illustration that are not appropriate for publication under FOISA but are necessary for the intended users of the Guidance, due to the type of work that requires to be undertaken by them and the nature of some of the issues involved.

The Guidance is, in a sense, a living document that can be amended or added to over time, to ensure that those who rely on it to do their work have access to lessons learned and the most up to date information available to them.

If this Guidance were to be disclosed into the public domain under FOISA, there is a probability that it will cause those involved in the production of its specific sections who are charged with its development over time, to feel restrained in how they express themselves in undertaking that important task. This will likely give rise to additional risks for GTCS in terms ensuring that its regulation officers and solicitors approach matters in a consistent and informed manner, if the areas of the guidance, including those that have been informed by legal advice, become less detailed over time and far less useful for GTCS regulation officers and solicitors.

It is also possible that disclosing the Guidance in relation to how regulation officers and solicitors approach Fitness to Teach investigations could leave that process open to manipulation in some instances and undermine the ability of GTCS to undertake investigations that are of key importance in it being able to perform its statutory functions, for example, in relation to how evidence is gathered.

Section 30(b)(ii) – free and frank exchange of views for the purposes of deliberation

I consider that this exemption applies to all the comments included in this ‘living document’ that don’t form part of the main text but rather offer commentary on it and are discursive in nature, in so far as they form part of the requested information.

Although this exemption was initially applied to withhold all information contained in the Guidance, I have decided at review stage that this exemption applies only to the comments on the document.

These comments, marked in the margins of the Guidance, are discursive in nature and worded in free and frank terms, due to the expectation that they are for internal consumption only within relevant team members at GTCS, to allow free and frank discussion between relevant officers of GTCS about aspects of the guidance and how it might be developed. The use of comments in the margin is an effective way to ensure that those using the Guidance on a regular basis are able to see issues are they are being raised and recorded and have access to free and frank explanations of matters arising, which, if disclosed into the public domain under FOISA, would be certain to restrict the likelihood of this approach being used going forward, with the fear of the comments being taken out of context or potentially giving rise to legal risks for GTCS.

Section 30(c) – prejudice to the effective conduct of public affairs

I have decided that the exemption in section 30(c) applies to certain information contained in the Guidance, which does not fall within the description of advice or discussion, but nonetheless is information that is a key part of the Guidance, for example, in relation to internal processes and factual information. If this were to be placed in the public domain by disclosing it to you under FOISA, we consider that there would be a reluctance to share factual details of experience gained from specific cases and so a more restrained, and less helpful, Guidance developing over time. This would have a significant adverse impact upon our officers and solicitors who need access to unrestrained information where relevant, for the purpose of undertaking their functions in relation to FtT investigations and learning lessons.

Section 35 – Law enforcement

I have decided that the exemption in section 35(1)(g) of FOISA, when read with section 35(2)(b), and (d)(ii) of FOISA, applies to some of the information contained in the Guidance you have requested. That is because it is likely that disclosure of that information into the public domain under FOISA would be likely to prejudice substantially the exercise by GTCS of its functions for the purposes of ascertaining whether a person is responsible for conduct which is improper, or a person’s fitness or competence in relation to the profession of teaching which that person is, or is seeking to become, authorised to carry on. These functions are at the heart of what GTCS does in relation to its Fitness to Teach work and disclosure of certain information in the Guidance would be likely to interfere with our ability to perform these functions effectively in terms of the approaches that are taken in relation to different investigations.

Public interest test

We have applied the public interest test in relation to maintaining each of the exemptions we have applied in sections 30(b)(i) and 30(b)(ii), 30(c) and 35(1)(g) read with 35(2)(b), and (d)(ii), as detailed above, balanced against the public interest in disclosure to you under FOISA of our FtT Investigations Guidance.

As you may be aware, our principal aims as the statutory body established to regulate the teaching profession in Scotland are to contribute to improving the quality of teaching and learning, and to maintain and improve teachers’ professional standards. In pursuit of these aims, we are tasked by law (in the form of the Public Services Reform (General Teaching Council for Scotland) Order 2011) to keep a register of teachers and to undertake a number of other functions, including but not limited to establishing the standards of conduct and professional competence expected of a registered teacher and investigating the fitness to teach of individuals who are, or are seeking to be, registered teachers.

Our governing legislation places us under a statutory duty to have regard to the interests of the public in performing these duties and to be proportionate, accountable, transparent and consistent and comply with other principles, guided by best practice.

In your review request, you state that it is in the public interest for you to obtain a copy of our FtT Investigations Guidance because you think that the GTCS is not transparent as to how it comes to its decisions, and you state that you are not the only person who thinks so. However, you do not provide any information in support of those statements and, whilst you are entitled to your opinion, we do not believe this to be the case.

Whilst we operate a presumption of openness in accordance with FOISA in dealing with information requests and acknowledge the general public interest in statutory bodies being as transparent as possible including in relation to decision-making of professional regulators, this does not necessarily mean that we must disclose everything we hold as and when interested individuals make requests, in order to meet the public interest and requirements for transparency.

We already operate in accordance with the principles of acting in the public interest and transparency, as we are required to do and in so far as is possible, whilst still being able to perform our important public functions fairly and in the public interest, including in the interests of the many children with whom teachers interact from a position of responsibility. We note that the public interest test under FOISA operates on the basis of the public interest meaning what is in the interest of the public, not what is of interest to the public or even one individual requester.

We consider that disclosing our FtT Investigations Guidance to you under FOISA, and thereby putting it in the public domain, will do little to further the public interest in transparency in relation to our decision making, but is likely to undermine our ability to perform our important statutory functions effectively, as highlighted in our explanation above in relation to the application of exemptions in section 30 and 35 of FOISA.

For this reason, I consider that the public interest in maintaining the section 30 exemptions and the section 35 exemption outweighs the public interest in disclosing a copy of our FtT Investigations Guidance to you and thereby putting it into the public domain.

Furthermore, in terms of our transparency in relation to our decisions, we would point you to the considerable amount of information contained on our website about how we perform all our functions, including in relation to Fitness to Teach: https://www.gtcs.org.uk/fitness-to-teach/. This includes detailed information in relation to the meaning of Fitness to Teach, the Fitness to Teach process, details relating to upcoming hearings, recent decisions in FtT cases, Rules and Policies including FtT Rules, Legal Assessor Rules, FtT Threshold Policy, and FtT Publication Policy, Code of Professionalism and Conduct, Information for people involved in FtT cases and how to make a referral or recommendation. We also publish 14 different practice statements designed to help guide and inform best practice at hearings and promote GTCS’s commitment to principles of fairness and transparency, as well as best regulatory practice.

Section 38(1)(b) – third party personal data

The Guidance contains some personal data of third parties, i.e. data that identifies them and relates to them, which we consider would be unfair to disclose to you and put into the public domain, as it would be beyond their reasonable expectations and would not be reasonable or possible for us to notify them or seek their consent to disclosure. By being unfair, such a disclosure would therefore also be unlawful in terms of the first data protection principle in Article 5(1)(a) of the UK GDPR. For that reason (of unfairness), we consider that it is not necessary to assess whether or not there is a legal condition for disclosure to you in Article 6(1) of the UK GDPR. I have therefore applied the exemption in section 38(1)(b) (read with section 38(2A)(a)) of FOISA, to withhold this information from disclosure to you, as it would contravene the first data protection principle in Article 5(1)(a) GDPR.

Right of apply for a decision to the Scottish Information Commissioner and right of appeal to the Court of Session

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. www.itspublicknowledge.info/Appeal. 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.