24-25/75

I refer to your request for information dated 29 November 2024 (FOI 24-25/75) in which you requested a copy of a document labelled “16-18PRA(16)24)” and referenced in FOI24-25/62 which we have handled under the Freedom of Information (Scotland) Act (FOISA).

I have identified the records and have provided them as an attachment labelled “FOI24-25/75_Records” accompanying this response. While our committee papers and minutes are all private documents, we have assessed that we are able to release this specific information.

You will note that I have redacted these records in line with our obligations under data protection legislation (marked with 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).

In addition, redactions have been applied (marked in black) where this information is withheld under section 30(b)(i) of FOISA. The information redacted includes advice provided by GTC Scotland officers to its committee. It includes legal and other advice, that ought to be afforded privacy and confidentiality to enable GTC Scotland officers to openly and freely provide advice to its Council members. While we consider it appropriate to disclose the committee paper in this instance, we consider that to disclose discrete pieces of advice, provided with the expectation of confidentiality in order to assist the committee in reaching a decision, would substantially inhibit free and frank provision of advice to our committee members in the future, undermining the ability of our Council and committee structure to appropriately function. While it is in the public interest to ensure transparency in the work that we do, we consider that the public interest test is outweighed by the need for GTC Scotland, as a public authority, to have the ability to provide confidential advice to its Council members without these being disclosed into the public domain.

If you are dissatisfied, you may contact informationgovernance@gtcs.org.uk to request GTC Scotland 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 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 20 December 2024 for a review of the response you received on 19 December 2024 to your original information request to GTC Scotland (FOI 24-25/75), dated 29 November 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.

 Your original request

In your original request you asked for the following:

Please could you send me a copy of the document that was presented to the meeting under the item on Fitness to Teach Caseload – Transitional Arrangements? – it looks like its document (16-18PRA(16)24)

On 20 December 2024, you sent an email requesting we review our decision in FOI 24-25/75 under section 20(1)of FOISA.

Your request for review

 I have decided that the original decision to refuse your request for disclosure of the redacted sections should be upheld with modification, 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. I have considered the review request and relevant documentation held by GTC Scotland. Although I believe that the exemptions applied previously were applicable, I have identified portions of the withheld records for which disclosure would not invoke the exemptions identified in our initial response. Please find the attached records labelled “FOI Review 24-25_23_Records” accompanying this response.

For the exemption applied that is 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 sections that were withheld in the original response, I consider that the exemption in section 30(b)(i) of FOISA applies specifically to the suggestions made through the document itself by individuals working within GTC Scotland. The paper submitted is an internal document prepared for one of our Council Committees which are held in private. Committees and Committee papers are, by default, private to ensure that in relation to the proposed work, colleagues can first consider fully the relevant issues to then allow them to advise Council members and ensure that they in turn are properly informed when reaching their decisions. Colleagues must be able to provide advice in relation to proposed work for further consideration with Council Members in private to ensure that our members are properly informed when reaching their decisions and providing open advice. The papers are written with no reasonable anticipation that they will be made public and at the very least that discreet points of advice provided will remain private and confidential. You will note, however, that having considered the content of the document we have provided the vast majority unredacted and applied the exemption only to a very small portion of the documentation, namely where confidential advice has been provided to the Committee to assist them in their decision-making function and to ensure they are properly informed.

If these records were to be disclosed unredacted 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 advice to our Committee and Council Members. 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, particularly when it is in relation to providing advice to their governing Council to enable them to carryout their role effectively. Without this, organisations will be unable to function properly, and employees will feel unable to freely provide their frank advice in anticipation that any within a confidential 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.

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), as detailed above, balanced against the public interest in disclosure to you under FOISA.

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

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, 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 the unredacted section 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 section 30(b)(i) of FOISA.

For this reason, I consider that the public interest in maintaining the exemption outweighs the public interest in disclosing the records unredacted to you and thereby putting it into the public domain.

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 their website. 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.