24-25/07

I refer to your request for information dated 27 May 2024 (FOI 24-25/07) in which you submitted various queries regarding a draft internal Investigations Guidance Document. Please see our response to your queries posed below.

You asked for “copies of all correspondence or documents referring internal or external ‘Regulatory Investigating Officers’ or any other person in a similar role to the said Investigations Guidance document” and separately for “the dates of all such correspondence or documents included in the scope of the above request.”

We have conducted a search and identified records which reference the draft Investigation Guidance document and have provided them with this response with the relevant dates of each correspondence appearing on the records.

You will note that we have redacted this correspondence in line with our obligations under data protection legislation. Where the redaction is in red, this has been done to protect the personal information of individuals as disclosing this information would identify individuals. The Freedom of Information (Scotland) Act 2002 (FOISA) does not require us to provide this sort of information as it is exempt under section 38(1)(b).

Where the redaction is in black, this has been done under section 30(b)(i) and (ii) as disclosure is likely to inhibit substantially the free and frank provision of advice as well as the free and frank exchange of views for the purpose of deliberation.

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 other information about our fitness to teach investigations process publicly available. However, there is also a significant public interest in GTC Scotland being able to discuss the development of internal guidance and procedure documents to support our fitness to teach investigation process without the concern that those communications made during the drafting process will be made public.

GTC Scotland needs to develop internal guidance and procedures in the light of changing and evolving regulatory practice in a private space so that we can develop, discuss, test and revise them continually. Disclosure of these discussions while they are considering internal procedures would substantially inhibit that procedure by depriving the participants of free and frank advice made in the process of deliberating. We also consider that the publicly available documentation referenced later in this response provides 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.

We also consider that releasing those sections of the document which have been redacted in black would otherwise prejudice substantially, or be likely to prejudice substantially, the effective conduct of public affairs under section 30(c) of FOISA.

As stated, while there is a clear public interest in the transparent operation of public authorities it is necessary for their proper functioning that iterative processes be developed internally without public scrutiny. We need to develop internal guidance and those procedures in the light of changes and evolving regulatory practice in a private space so that we can develop, discuss, test and revise procedures while they are being developed. The correspondence includes colleagues applying their minds to these issues by using their skill and expertise to discuss and engage in a developing process. Allowing sufficient privacy to develop these procedures free from public scrutiny is necessary to effectively carry this out.

If this correspondence 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 would be developed 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 Fitness to Teach investigations and learning lessons.

Furthermore, we consider that there are sections of the correspondence which do not relate to the Investigations Guidance document, but form part of the correspondence identified within our search. Similarly, the exemptions contained within section 30(b) and (c) apply to those comments which form part of the correspondence for the reasons outline above.

You also asked for “copies of all correspondence or documents indicating that internal or external “Regulatory Investigating Officers” or any other person in a similar role should use, refer to, or be guided by the said Investigations Guidance document” with “the dates of all such correspondence or documents included in the scope of the above request.

This information is contained in the Regulatory Investigation Officer (RIO) Quality Assurance Logs which are documents that record the progress of individuals. Disclosing these logs could enable individuals to be identified in breach of the data protection principles set out in data protection legislation. The Freedom of Information (Scotland) Act 2002 (FOISA) does not require us to provide this sort of information as it is exempt under section 38(1)(b). To provide this document would involve providing a nearly entirely redacted document except for a single comment. We have, therefore, isolated the applicable comment from the relevant Quality Assurance Logs together with the date it was entered below:

“Continue to review other Interim Reports to identify useful phrases etc. Continue to consult the Investigation Guidance documents.” - 04 January 2024.

Finally, you asked for “copies of all correspondence or documents indicating that internal or external ‘Regulatory Investigating Officers’ or any other person in a similar role should not use, refer to, or be guided by the said Investigations Guidance document” with “the dates of all such correspondence or documents included in the scope” of the request.

We have conducted a search for these records and have not identified any relevant records and have therefore applied section 17(1) to this query within your request.

If you are dissatisfied, you may contact informationgovernance@gtcs.org.uk to request GTCS conduct a review of this response. 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.