24-25/32

I refer to your request for information dated 16 August 2024 (FOI 24-25/32) in which you asked for “all information held pre the approach to the PSA last year with regard to the rationale [sic] behind why the GTCS felt it necessary to reach out to the PSA in the first instance” which we have handled under the Freedom of Information (Scotland) Act (FOISA).

By way of advice and assistance, you may be interested in a Call for Views which was recently published on the GTC Scotland website on the Fitness to Teach Rules.

With regards to your request, we have identified records regarding “why the GTCS felt it necessary” to “approach the PSA” on 24October 2023. The identified records include the following:

• An internal, draft document labelled “Requirements for Independent Reviewer” dated October 2023;
• An email sent internally to colleagues within GTC Scotland discussing the purpose and scope of the review dated 18 October;
• An email and response from the Institute of Chartered Accountants in England and Wales on their experience commissioning a review dated 19 and 20 September 2023;
• An email and response from the Institute of Chartered Accountants Scotland on their experience commissioning a review dated 19 and 20 September 2023;
• An email and response from Social Work England on their experience commissioning a review dated 19 and 20 September 2023;
• An email and responses from the General Medical Council Scotland on their experience commissioning a review dated 19 and 28 September 2023.

We have elected to withhold the internal, draft document labelled “Requirements for Independent Reviewer” dated October 2023 as it is exempt under section 30(b)(i)(ii) and section 30(c) of FOISA. By way of explanation, please note that this document was not shared with the PSA as it was a working document for internal discussion only to identify the purpose and scope of a review.

These exemptions are subject to the public interest test. Whilst there is clear public interest in the transparent operation of public authorities, which is why the finalised report of the PSA’s review will be made publicly available,  there is also significant public interest in GTC Scotland being able to create draft documents for internal consideration in a private space so that they can be articulated, developed, discussed and tested. Disclosure of this draft, internal document would be likely to substantially inhibit the development of such internal documents if employees knew they could be disclosed under FOISA. We consider the public interest in withholding this information outweighs the public interest in disclosure.

You will note that the documents I have provided have been redacted in line with our obligations under FOISA. Where the redaction is in red, this has been done to protect the personal information of individuals as disclosing this information could enable individuals to be identified. 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. Additionally, we will be making the report completed by the PSA publicly available. However, there is also a significant public interest in GTC Scotland being able to consider various options relating to improving the processes which support our fitness to teach obligation without the concern that these communications during the commissioning process will be made public.

GTC Scotland needs to review its 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 records would substantially inhibit that procedure. We also consider that the publicly available documentation already available has provided the information required to understand how the decision to commission a review was reached. 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 review procedures be considered internally without public scrutiny. We need to develop internal thinking and the procedures which will be reviewed in the light of changes and evolving regulatory practice in a private space so that we can develop, discuss, test and revise them. The correspondence includes colleagues applying their minds to these issues by using their skill and expertise to discuss and engage in a developing process through suggestions and free and frank discussions.

If these records 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 with other regulators and so more restrained, and less helpful contributions will be made over time. This would have a significant adverse impact upon our Regulatory Investigations team and other GTC Scotland employees involved in this work who need to be able to engage in frank discussions where relevant, for the purpose of undertaking their functions in relation to Fitness to Teach process.

You may contact informationgovernance@gtcs.org.uk if you are dissatisfied with this response, to request GTC Scotland conduct a review of it. You should describe the original request and explain your grounds of review. You have 40 working days from receipt of this response 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 16 September 2024 for a review of the response you received on 13 September 2024 to your original information request to GTC Scotland (FOI 24-25/32), dated 16 August 2024.

You have expressed dissatisfaction with our response to your information request. To enable your review request to be considered afresh and by someone who has not responded to your original request, I have been appointed to undertake the internal review on behalf of GTC Scotland.

Review decision

I have decided that the original decision to refuse your request for disclosure of the draft document titled "Requirements for Independent Reviewer” (the Document) should be upheld, for the reasons set out below and having considered 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 the Freedom of Information (Scotland) Act (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

Having considered the Document that was withheld in the original response, I consider that the exemption in section 30(b)(i) of FOISA applies specifically to the advice and suggestions through the document itself by individuals working within GTC Scotland. The Document is a draft document, clearly marked as such and is intended for internal use only by employees working within GTC Scotland to enable them to provide their advice in relation to proposed work for further consideration with colleagues with no reasonable anticipation that any such documentation or advice would later be made public.

If this document was to be disclosed into the public domain under FOISA, there is a high probability that it will cause those who contributed to it to become more restrained in the future when providing their advice.

Individuals are more likely to contribute to a process freely when they know that their advice and suggestions will not be exposed to public scrutiny at a later point through FOISA. Organisations must be afforded the ability for employees to openly provide advice in relation to proposed work and how best to undertake that work, in this case a review of our current Fitness to Teach Rules. Without this, organisations will be unable to function properly and employees will feel unable to freely provide their frank advice in relation to such planned work, in anticipation that advice contained within a confidential draft document may then be made available to the public . It would be likely to inhibit substantially the free and frank provision of advice by our colleagues in this way.

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

I consider that this exemption also applies to the notes made within the Document which are discursive in nature, in so far as they form part of the requested information.

These comments and queries (often marked with a question mark) are discursive and worded in free and frank terms, due to the expectation that they are for internal use only within relevant team members at GTC Scotland, to allow free and frank discussion between relevant employees on how to proceed with a review of the current Fitness to Teach process.

The notes within the Document (as well as the suggestions and queries following it) are an effective way to reflect contemporaneous thinking and ensure access to free and frank explanations of matters a rising within it. These views are recorded by employees within an internal draft document with no reasonable anticipation that their views, notes and comments provided to inform thinking around a particular piece of work may eventually be made available to the public. If this document was disclosed into the public domain under FOISA, we consider that this would restrict the likelihood of an open and constructive approach being used going forward with the fear that the comments and suggestions would be shared externally and potentially misinterpreted or disrupting the process. Organisations must be afforded the ability for employees to openly discuss and express their views in relation to proposed work and how best to undertake that work, for further collaboration and deliberation within the organisation, in this case a review of our current Fitness to Teach Rules. Without this, organisations such as ours will be unable to properly function and employees will feel unable to freely provide their views in relation to planned work through draft documentation, principally created to enable collaboration, deliberation and the sharing of ideas, in anticipation that advice contained within a confidential draft document may then be made available to the public.

Subjecting this document to public scrutiny under FOISA, while it remains in draft form during an ongoing review, will likely deter individuals from contributing and would have the chilling effect envisaged by the section 30(b)(ii)exemption contained under the Act. It would be likely to inhibit substantially the free and frank exchange of views by our colleagues for the purposes of deliberation.

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

I have decided that the exemption in section 30(c) applies to the information contained within the Document, which does not fall within the description of advice or discussion, but nonetheless is information that is a key part of the Document. The Document discusses the proposed review of our current Fitness to Teach Rules, a statutory requirement for GTC Scotland inline with its statutory, public functions. The Document assesses, in draft form, how any such review may be conducted and how that review may inform our statutory Fitness to Teach process.

The Document is, by necessity, written in a way that is very free, frank and open to enable collaboration within the organisation on planned work. The draft document includes applicable considerations and open ended questions used in various places throughout, providing details for evaluation that are not appropriate for publication under FOISA but are necessary for the readers of the Document, due to the type of work that is required to be undertaken by them and the nature of some of the issues involved.

If this were to be placed in the public domain by disclosing it under FOISA, we consider that there would be a reluctance to share informed opinions gained from work by colleagues and so more restrained, and less helpful, Documents would be developed over time. This would have a significantly adverse impact upon employees who need access to unrestrained, draft opinions where relevant, for the purpose of undertaking their functions in relation to one of our statutory duties. Disclosure under FOISA of a draft, internal document to enable members of the organisation to share information in this way and look to develop and improve our statutory functions, and ultimately the conduct of our public affairs, would be likely to substantially prejudice the effective conduct of the organisation’s public affairs.

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), (b)(ii) and 30(c), as detailed above, balanced against the public interest in disclosure to you under FOISA of the Document.

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 our governing legislation, 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 the Document for “transparency reasons” so that the “public is best able to understand why” GTC Scotland “thought this review was necessary” as you think that GTC Scotland is not transparent as to this review process. However, you do not provide any information in support of those statements and, whilst you are entitled to your opinion, we do not accept this as an objectively accurate statement in relation to our transparency. I would highlight GTC Scotland’s proactive publication of an article in relation to the commissioning of the review, to ensure members of the public were aware of the review and why the review was being undertaken. The report will ultimately be made available to the public to view. In addition, we have recently opened a call for views to invite public engagement and feedback on our current Fitness to Teach Rules and process.

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 result in the disclosure of everything we hold upon request, 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. 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 the Document 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 this review process 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 of FOISA.

For this reason, I consider that the public interest in maintaining the section 30 exemptions exemption outweighs the public interest in disclosing a copy of the Document 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. 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 GTC Scotland’s commitment to principles of fairness and transparency, as well as best regulatory practice.

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

Furthermore, while this was not cited in our initial response, the Document also 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. 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 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.As this exemption is not subject to a public interest test, we consider that the disclosure of this those sections of the document which identify individuals would violate our obligations under data protection legislation.

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.