23-24/68

I refer to your request for information (FOI 23-24/68) dated 22 November 2023 which we have handled under the Freedom of Information (Scotland) Act (FOISA).

You requested the following information:

Please could you let me know which messaging tools GTC Scotland has used in the last three years for official business (i.e. any tool in which any message relating to official business has been sent, whether or not the accounts used were official GTC Scotland accounts)?

Please could you let me know on how many occasions in the last three years messages relating to GTC Scotland official business were sent or received on accounts that were not formal GTC Scotland accounts?

Please could you let me know for each request for information under FOISA in the last three years which messaging tools were searched in the processing of the request?

Please could you let me know for each request for information under FOISA in the last three years whether messaging tool accounts that were not formal GTC Scotland accounts were searched?

I provide a response to each of your requests below. For context, please note that GTC Scotland does not monitor the personal accounts of staff members but can advise that where staff messaging occurs through non-official GTC Scotland accounts this is for logistical or leave planning purposes and not for substantive discussion about official GTC Scotland business.

Regarding your first query, I can confirm that in the last three years GTC Scotland has predominately used Microsoft Outlook and Teams for official business but we do also hold official accounts on X and Facebook. During the pandemic and in some meetings with external bodies we used Zoom to conduct or participate in meetings; this also has a messaging functionality. Our Regulatory Investigations Team has access to the Criminal Justice System Mail which is an encrypted platform used to communicate with appropriate legal authorities.

Regarding your second query, GTC Scotland does not monitor employees’ personal accounts and therefore we do not hold records on how many occasions in the last three years messages relating to GTC Scotland official business were sent or received on accounts that were not official GTC Scotland accounts. I have therefore applied section 17 of FOISA to this query.

Regarding your third query, please note that we do not make a note of which messaging tools were searched in the processing of requests and would have to create a record of this to answer your request. Therefore, we do not hold records related to this query and have applied section 17 of FOISA. However, under section 15 of FOISA and our duty to provide advice and assistance I can advise you that we would use Microsoft Outlook or Microsoft Teams if the wording of the request required a record of communications or for staff to provide information which could not be shown by a record.

Regarding your fourth query, as explained above, we do not make a note of which messaging tools are searched to process Freedom of Information requests nor does GTC Scotland monitor accounts which are not formal GTC Scotland accounts, therefore I have applied section 17 of FOISA.

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 04 January 2024 for a review of the response you received on 21 December 2023 to your original information request (FOI 23-24/68). I have been appointed to undertake the internal review.

I have considered your original request for information, your review request, and our organisation’s obligations under the Freedom of Information (Scotland) Act 2002 (FOISA). For the reasons set out below, I have concluded that two decisions should be upheld and two require modification.   

Your original request  

In your original request you stated the following: 

Please could you let me know which messaging tools GTC Scotland has used in the last three years for official business (i.e. any tool in which any message relating to official business has been sent, whether or not the accounts used were official GTC Scotland accounts)?  

Please could you let me know on how many occasions in the last three years messages relating to GTC Scotland official business were sent or received on accounts that were not formal GTC Scotland accounts?  

Please could you let me know for each request for information under FOISA in the last three years which messaging tools were searched in the processing of the request?  

Please could you let me know for each request for information under FOISA in the last three years whether messaging tool accounts that were not formal GTC Scotland accounts were searched?

We provided you with a list of messaging tools under your first query and cited section 17 of FOISA with regards to three other queries in your request.

On 04 January 2024, you sent an email requesting we review our decision under section 20(1) of FOISA.  

Your internal review request  

In your review request you state:

I request a review of this response. I will explain the grounds for review below.

You introduce your response by providing the following context:

For context, please note that GTC Scotland does not monitor the personal accounts of staff members but can advise that where staff messaging occurs through non-official GTC Scotland accounts this is for logistical or leave planning purposes and not for substantive discussion about official GTC Scotland business.

If you do not monitor the personal accounts of staff members then it is difficult for me to see how you could say that “where staff messaging occurs through non-official GTC Scotland accounts this is for logistical or leave planning purposes and not for substantive discussion about official GTC Scotland business”. On the one hand you appear to be asserting knowledge of the content of non-official accounts and at the same time you are asserting no knowledge. This is confusing for me. Please could you clarify?

In response to my first question about the messaging tools used by GTC Scotland for official business I explicitly specified “i.e. any tool in which any message relating to official business has been sent, whether or not the accounts used were official GTC Scotland accounts “. You have not provided any information about accounts which are not official GTC Scotland accounts. Given your statement that you do not monitor the personal accounts of staff members it is difficult to see that you have carried out appropriate searches unless you have explicitly asked staff which tools they use for official business whether or not the accounts used were official GTC Scotland accounts.  

Asking staff would provide a level of confidence, given the potential for criminal offence under Section 65 if the member of staff were to not disclose such messaging. I request that you carry out appropriate searches including asking staff what messaging tools they have used to discuss official business, whether or not the accounts used were official GTC Scotland accounts, and providing appropriate support to ensure that staff understand their personal legal obligations in responding. Please could you do this?

In response to my second question you have stated that you do not monitor employees` personal accounts and therefore you do not hold records to answer the question. However, my expectation is that you also do not *monitor* the official accounts of employees, but would still be expected to provide information about their contents in response to information requests made under FOISA. The monitoring or not seems irrelevant to me.  

The Commissioner has been clear about this:

Where tools such as WhatsApp are used by public authority staff to carry out official business, the information generated will, in most cases, fall under the scope of Scotland’s FOI laws. The Freedom of Information (Scotland) Act 2002 defines “information” as “information recorded in any form”. The Commissioner therefore expects public authorities to identify and consider all appropriate recorded information when responding to FOI and EIR requests, including, where relevant, information recorded in exchanges made through WhatsApp, Microsoft Teams, or other messaging tools.

In circumstances where the Commissioner finds that public bodies are not appropriately searching relevant sources in order to respond to information requests, he may consider regulatory action in order to support necessary improvements.  

What I believe is required here is evidence that appropriate searches have been carried out including asking staff what messaging tools they have used to discuss official business, whether or not the accounts used were official GTC Scotland accounts, and providing appropriate support to ensure that staff understand their personal legal obligations in responding. Please could you address this?

Regarding your response to the third question. I think it is unlikely that you do not hold this information – it may be contained within the correspondence asking members of staff to provide the information requested or the responses provided by staff. Please could you check?

Regarding your response to the fourth question you say that you do not hold the information, but the other text of your response implies that you hold information indicating that no such searches were carried out. Please could you check that you do not hold this information?

Our response 

Firstly, in dealing with your assertion that we appear to be both “asserting knowledge of the content of non-official accounts and at the same time you are asserting no knowledge.” I can clarify that in order to conduct a reasonable and proportionate search an all-staff communication was sent requesting the information as outlined in your request. We had regard to the replies received to this communication when we compiled our response to you in FOI 23-24/68.

Regarding your first query, you asked, “which messaging tools GTC Scotland has used in the last three years for official business” and we provided you with a list of messaging tools. Upon further investigation during this review, it has come to our attention that one staff member used a personal messaging tool, specifically Facebook Messenger, in relation to matters which could be regarded as official GTC Scotland business. Therefore, our original response is modified to include this information.

Regarding your second query, you asked “on how many occasions in the last three years [were] messages relating to GTC Scotland official business...sent or received on accounts that were not formal GTC Scotland accounts?” Although we do not monitor the personal accounts of staff and did not hold recorded information on the number of occasions on which official business was conducted on non-formal accounts, a request for this information was made in the all-staff communication. This allowed us to respond to your request for this information.  

As mentioned above, it has since come to our attention that one staff member used a personal messaging tool on five separate occasions in relation to matters which could be regarded as official GTC Scotland business. Therefore, our original decision is substituted with this information.

Regarding your third query, you asked which messaging tools were searched in the processing of each request for information under FOISA in the last three years. We indicated in our response that GTC Scotland would use Microsoft Outlook and Teams when searching for information to respond to freedom of information requests. You have indicated that you think it is “unlikely” that we do not hold this information and believe it “may be contained within correspondence asking members of staff to provide the information requested or the responses provided by staff.”  

Upon review, I can confirm that we do not hold a record of this information. Therefore, our original decision is upheld without modification.

Regarding your fourth query, you asked for information on whether messaging tools that were not formal GTC Scotland accounts were searched under FOISA in the last three years. Upon review, I can confirm that we do not hold a record of this information. Therefore, our decision is upheld without modification.

Recent topical events have brought this issue to the fore, and we are aware of the Commissioner’s statement on the use of ‘non-corporate’ messaging tools. We understand the importance of keeping up to date in relation to best practice on issues such as this and review our processes as required.

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.