Decision 083/2025: Published outcomes of fitness to teach cases
 

Authority:  General Teaching Council for Scotland
Case Ref:  202400729

The Authority has appealed this Decision to the Court of Session 
 

Summary

The Applicant asked the Authority for copies of all outcomes of fitness to teach cases published on the Authority’s website since 1 October 2016.  For the information published on its website at the time of the request, the Authority refused the request on the basis that it was publicly available.  For the remainder, the Authority refused the request on the basis that the information was third party personal information, disclosure of which would breach data protection legislation.

During the investigation, the Authority acknowledged that it would cost more than £600 to provide the information requested. Following an investigation, the Commissioner accepted this, but found that the Authority had failed to comply with Part 1 of FOISA in responding to the request.  He required the Authority to provide the Applicant with advice and assistance on how he might make a new, refined request, within the cost limit, should he wish to do so.

Relevant statutory provisions

Freedom of Information (Scotland) Act 2002 (FOISA) sections 1(1), (2) and (6) (General entitlement); 2(1)(a) and (2)(a) and (e)(ii) (Effect of exemptions); 12(1) (Excessive cost of compliance); 15 (Duty to provide advice and assistance); 25(1) (Information otherwise accessible); 38(1)(b) (Personal information); 47(1) and (2) (Application for decision by Commissioner)

The Freedom of Information (Fees for Required Disclosure) (Scotland) Regulations 2004 (the Fees Regulations) regulations 3 (Projected costs); 4 (Fee payable); 5 (Excessive cost – prescribed amount)

Background

1. On 3 October 2023, the Applicant made the following request for information to the Authority:

2. “Under FOISA, please could you send me copies of all outcomes of fitness [to] teach cases that have been published on your website since 1 October 2016.  Please provide exactly the information that was published on your website ensuring that no new information will enter the public domain. Should provision of this information be deemed too costly, please provide as much information as possible (chronologically with earlier dates preferred) starting from 1 October 2016.”

3. In his request for information, the Applicant referred to the Authority’s Fitness to Teach Publication Policy[1] which listed the reasons for making the decisions public.  He noted that this same policy also stated that, and explained why, decisions would be removed from the website after three months, a point which he considered to be essentially arbitrary and not directly connected to any information law. He also commented that the availability of information to those who had downloaded it at the time (but not to others) introduced an unfairness of access amongst differing members of the public.
4. On 31 October 2023, the Authority wrote to the Applicant and apologised for the delay in responding.
5. The Authority responded to the Applicant’s information request on 1 November 2023 and again apologised for the delay in responding.  For the recorded outcomes of fitness to teach cases that were currently on its website at the time of the Applicant’s request over the three months preceding his request, it refused that part of the request under section 25(1) of FOISA on the basis that the information was otherwise available. It provided the Applicant with a link to its website where its recent decisions were published.
6. For the remainder of the information, the Authority refused that part of the Applicant’s request under section 38(1)(b) of FOISA, on the basis that the information was third party personal data, disclosure of which, into the public domain, would breach data protection legislation.
7. The Authority stated that it did not have a statutory duty to publish the outcomes of fitness to teach cases.  It explained that decisions in fitness to teach cases, which have been subject to the entirety of the process and have resulted in either a full public hearing or a consent order, were published on its website for three months, in line with its Fitness to Teach Publication Policy.  It noted that some of these may be anonymised.  The Authority also explained that it did not routinely place all outcome information into the public domain in perpetuity as it considered such processing of personal data would be unfair and beyond the reasonable expectations of the individuals concerned, and thereby unlawful.
8. On 2 November 2023, the Applicant wrote to the Authority requesting a review of its decision to refuse the information being withheld under section 38(1)(b) of FOISA.  The Applicant stated that he was dissatisfied with the decision on a number of grounds, including:

• the Authority had failed to ask him what his legitimate interest was in the information requested.  He argued that access to the information would allow public scrutiny of the Authority and thus contribute to the safety of children, in addition to allowing continuance of the legitimate interests set out in the Authority’s policy document;

• as the Authority had previously published the information, he believed republishing it could not reasonably be considered to be further processing;

• the Authority had failed to reasonably explain why it believed it was acceptable to publish information on one day, and then consider it unacceptable the next (i.e. when the three month cut-off date had passed);

• the Authority had failed to address the point that the information, previously published, may be available to individuals who had downloaded it at the time, and any subsequent archiving by them of such information;

• as the data subjects were largely teachers in positions of responsibility, where the information related to them acting in their professional capacity, often with respect to the welfare of children in their care, this changed consideration of their rights to their personal information being made public;

• the Authority had failed to consider that the original information published had already been processed to remove identifying information for many of the subjects affected, and

• the Authority had failed to consider providing the information with redactions.

8. The Authority notified the Applicant of the outcome of its review on 1 December 2023, fully upholding its original decision for the reasons set out in its original response.  It explained that the individuals to whom the information related would be aware of its Publication Policy, which clearly stated that a balance must be struck in relation to publication.  The Authority considered that the teaching profession overall was not one that gave rise to a great expectation of publicity in terms of a person’s professional life, and that these individuals would not have a reasonable expectation that their personal data would be placed back into the public domain after cases had been concluded and, in many cases, some years after the data was withdrawn.
9. The Authority explained that it considered requests for information in accordance with data protection and freedom of information law, and confirmed that it had considered the interests articulated by the Applicant in his request for review, i.e. public scrutiny of the Authority, thus contributing to the safety of children.  The Authority considered this was achievable, and to a greater extent, by a range of other means less intrusive than placing the personal data requested into the public domain, in perpetuity, under FOISA.  It believed that disclosure of the requested information for the three month period set out in the Publication Policy satisfactorily achieved the legitimate interests articulated by the Applicant.
10. On 27 May 2024, the Applicant wrote to the Commissioner, applying for a decision in terms of section 47(1) of FOISA.  The Applicant stated that he was dissatisfied with the outcome of the Authority’s review because he disagreed with the Authority’s decision to withhold the information requested under section 38(1)(b) of FOISA, largely on the grounds set out in his request for review.  In addition, he argued that:

    • the data subjects could have no reasonable expectation that the information would not be made available to the public after three months as the Publication Policy did not state that, the reports had been screened to ensure that publication was lawful, and the hearings were conducted in public;

    • teachers entered the profession knowing that their registration was governed by the Authority and that their behaviour, in both their professional and personal life, must remain within the Authority’s Code of Professionalism and Conduct[2].  He believed it was essential for the protection of the public that the conduct of teachers was subject to public scrutiny, and therefore the Authority’s argument on this point was without merit;

    • a “blanket refusal” to disclose information after three months had been imposed based on a Publication Policy, without taking into account that the policy explicitly contained exceptions for FOI requests;

    • the outcomes were already in the public domain in perpetuity as a result of the publication – they were just not readily accessible to the Applicant;

    • his stated legitimate interest could not be achieved either through the limited period of publication or by other means (as claimed by the Authority), and the Authority had failed to identify what those other means were;

    • if the original publication of the information was lawful, then further processing to provide the archived material in the public interest would also be lawful, and

    • other regulators (examples of which the Applicant provided) made their judgements available in the long term.

Investigation

11. The Commissioner determined that the application complied with section 47(2) of FOISA and that he had the power to carry out an investigation.
12. On 20 June 2024, the Authority was notified in writing that the Applicant had made a valid application. The Authority was asked to send the Commissioner the information withheld from the Applicant.  The Authority provided the information and the case was subsequently allocated to an investigating officer.
13. Section 49(3)(a) of FOISA requires the Commissioner to give public authorities an opportunity to provide comments on an application.  The Authority was invited to comment on this application and to answer specific questions.  These focussed on the Authority’s justification for withholding the information under section 38(1)(b) of FOISA, and the searches carried out to identify the information requested.
14. The Applicant was also invited to provide any further submissions on his legitimate interest in accessing the personal information requested.
15. Both parties provided submissions to the Commissioner at various points during the investigation.
16. From the initial submissions provided by the Authority (in which it continued to claim reliance on section 38(1)(b)), it became apparent to the Investigating Officer that the cost to the Authority, of responding to the request in full, was highly likely to have exceeded the £600 cost limit set out in the Fee Regulations.  In such circumstances, section 12(1) of FOISA applies and the Commissioner cannot require a public authority to disclose the information requested.  The Authority was therefore invited to comment on the application of section 12(1).
17. In its subsequent submissions, the Authority confirmed that its primary position was that the information was the personal data of third parties, disclosure of which would breach data protection legislation.  It accepted however that, to fully comply with the request, this would exceed the £600 cost limit.

Commissioner’s analysis and findings

18. The Commissioner has considered all of the submissions made to him by the Applicant and the Authority.

Section 12(1) – Excessive cost of compliance

19. As noted above, during the investigation, the Authority acknowledged that the cost of complying with the Applicant’s request in full would exceed the £600 limit laid down in the Fees Regulations.
20. Section 12(1) of FOISA, read in conjunction with regulation 5 of the Fees Regulations, states that public authorities are under no obligation to comply with requests for information where the cost of doing so would exceed the prescribed figure of £600.  Consequently, the Commissioner has no power to require the release of information should he find that the cost of responding to any single request for information exceeds this amount.
21. Taking into account the fact that a Scottish public authority can, at any point (including during the course of an investigation), conclude that the cost of supplying information that has been requested would exceed the £600 limit set out in the regulation 5 of the Fees Regulations, the Commissioner is obliged to consider whether section 12(1) of FOISA would prevent him from ordering disclosure of the information in this case.
22. The projected costs an authority can consider in relation to a request for information are, according to regulation 3 of the Fees Regulations, the total costs, whether direct or indirect, which the authority reasonably estimates it is likely to incur in locating, retrieving and providing the information requested in accordance with Part 1 of FOISA.
23. An authority may not charge for the cost of determining whether it:

    1. actually holds the information requested or

    2. should provide the information.

The Authority’s submissions

24. As set out above, the Commissioner sought comments from the Authority on the application of section 12(1) of FOISA because it was apparent to him that the cost to the Authority of responding to the request was highly likely to have exceeded the £600 limit set out in the Fees Regulations.
25. The Authority explained that, in its initial consideration of the request, its initial searches for the in-scope information identified a total of 569 cases comprising:

    • 214 cases on the current master spreadsheet (going back to 31 July 2017) where each case would likely require to be manually interrogated to determine whether they contained multiple decisions that were published, and

    • 355 closed cases for the period 1 October 2016-31 July 2017, all of which would need to be manually interrogated as these could not be easily filtered to identify their outcome and, therefore, publication.

26. Having calculated the initial costs of interrogation, this led the Authority to conclude that the cost of responding would exceed the £600 cost limit.
27. The Authority then considered whether to refuse the request under section 12(1) of FOISA and advise the Applicant to submit a narrowed requested, or whether to apply section 15 (Duty to provide advice and assistance) of FOISA and supply those decisions which it could provide “free of charge”.  Noting the wording in the Applicant’s request, where he had stated “Should provision of this information be deemed too costly, please provide as much information as possible (chronologically with earlier dates preferred) starting from 1 October 2016”, the Authority explained that it had then considered what information could be provided “free of charge”, i.e. for under £100 [which is the point at which an Authority can charge a fee].
28. The Authority submitted that, even though the request parameters exceeded the £600 cost threshold with the possibility of invoking section 12 of FOISA, it chose not to invoke this as part of its duty to provide advice and assistance by locating those records which it could provide for under £100 and considering any relevant exemption which may be applicable. The Authority described several avenues it had explored in this regard, based on different, narrowed date ranges.  The Authority submitted that, in doing so, it was trying to be helpful to the Applicant in terms of the duty to provide advice and assistance in section 15 of FOISA.
29. Having determined the information that could be provided “free of charge”, the Authority then considered whether disclosure of that information was lawful, fair and transparent in terms of the UK General Data Protection Regulation (UK GDPR) as, regardless of any previous publication, release of the information under FOISA would be a disclosure for all time, and the UK GDPR and section 38(1)(b) of FOISA would still be applicable.
30. Having done so, the Authority considered that all of the information falling within the scope of the request was third party personal data which was exempt from disclosure under section 38(1)(b) of FOISA, disclosure of which would breach two of the data protection principles in Article 5 of the UK GDPR.  This, the Authority explained, was its position at both initial response and review stages.
31. During the investigation, while the Authority maintained that its primary position was that section 38(1)(b) applied to all of the information requested, it accepted that the cost of fully complying with the request would exceed the £600 cost limit, and that section 12(1) applied to the request in full.
32. The Commissioner asked the Authority to provide a sample cost estimate, setting out what would be involved in locating, identifying and retrieving the in-scope information, including the cost of carrying out any redactions it considered necessary for (i) the 2016/17 decisions and (ii) the later decisions (given the different record-keeping for each of these periods).
33. The Authority duly provided this, explaining that:

    • The number of records (identified from the two spreadsheets) that would require to be interrogated totalled 961, comprising:

      • 82 decisions already identified from 2016/17;

        • 729 cases closed between July 2017-August 2021 (which were still to be interrogated to identify decisions falling within the scope of the request), and

        • 150 decisions already identified from 2020/21 to 2023/24.

    • Actual staff time would cost £15.00 per hour, as the search would need to be undertaken by a senior Regulation Case Manager from the Regulatory Investigations team.

    • Based on an average of 10 minutes per record, the manual search to locate the information would take 160 hours, equating to a cost of £2,402.50.

    • This did not include the time to review and redact any information as necessary, which:

      • For the 82 records from 2016/17, the Authority estimated this would take an average of 20 minutes per record, totalling 27 hours, which equated to a cost of £410.00.

        • For the150 decisions from 2020/21 to 2023/24 already identified, given these would likely require less redaction due to a change in practice in anonymity and redaction, the Authority estimated that this would take an average of 10 minutes per record, totalling 25 hours, equating to a cost of £375.00.

    • Based on the above information (which did not include any redaction of information in the 729 cases closed between July 2017-August 2021 still to be interrogated), the minimum cost of fully complying with the request was estimated at £3,187.50.

34. The Authority submitted that these figures constituted approximations in response to the Commissioner’s request for details of the estimated cost of compliance, and did not form the basis of its response to the Applicant.

The Commissioner's view

35. Having fully considered the Authority’s submissions, the Commissioner has no option but to conclude that the cost of providing the information requested by the Applicant, in full, would significantly exceed the £600 cost limit laid down in the Fees Regulations.
36. Consequently, the Commissioner accepts that section 12(1) of FOISA applies to the Applicant’s request in full, that the Authority was under no obligation to comply with it and that he has no power to require the release of the information requested.
37. The Commissioner, therefore, will not consider in this Decision Notice whether the exemption in section 38(1)(b), cited by the Authority, should be upheld.  He does not have the power to require release of the information where he accepts that section 12(1) applies to the request under consideration.

Handling of the request

38. In the circumstances, the Commissioner must comment on the Authority’s handling of the request.
39. Clearly, while having initially recognised that to fully respond to the request would exceed the cost limit, the Authority’s failure to respond to the request in terms of section 12(1) has caused the Applicant significant delay.
40. It has also resulted in an appeal having been made to the Commissioner, the substance of which (i.e. whether the exempted information was properly withheld under section 38(1)(b)) he cannot consider because he has no power to require disclosure of the information requested, due to the cost of fully responding to the request exceeding the upper cost limit.  It has also resulted in a significant amount of work for both the Authority and the Commissioner’s office.
41. In all, the Commissioner considers that this is an unsatisfactory situation that could have been avoided.
42. The Commissioner is also somewhat concerned in relation to the Authority’s initial approach to the Applicant’s request.  Regulation 4 of the Fees Regulations provides that, where the projected costs of complying with a request do not exceed £100, no fee is payable, but where the projected costs are between £100 and the prescribed amount of £600 (set out in Regulation 5), the fee shall not exceed 10% of the difference between the project costs and £100.
43. As set out above, the Authority explained that, in its initial consideration of the Applicant’s request, it took steps to consider what information it could provide “free of charge” (i.e. for under £100).  While the Commissioner acknowledges that, in doing so, the Authority believed it was trying to be helpful to the Applicant, he would stress that there is nothing in either the Fees Regulations, or in section 12 of FOISA, that makes provision for an Authority to be able to respond to only part of a request where it estimates that the full cost of complying exceeds the £600 cost limit - whether that be up to the point at which a fee can be charged, or up to the £600 cost limit.  This could only be achieved where an authority responds to a request in terms of section 12(1), and then engages with the applicant with a view to refining the request in order to bring it within the cost limit, which ultimately would be dealt with as a new request.  In the Commissioner’s view, the Authority clearly took the wrong approach here, in its initial consideration of the request.  While not a breach of FOISA, he would urge the Authority, and indeed all Scottish public authorities, to ensure all requests that are likely to exceed the £600 cost limit, are handled correctly.

Next steps

44. Where section 12(1) of FOISA is engaged, the Commissioner considers the duty to provide advice and assistance, in terms of section 15, particularly important in order to enable a requester to effectively narrow the scope of their request.
45. The Commissioner therefore requires the Authority to engage with, and provide advice and assistance to, the Applicant on how he might (should he wish to do so) make a new, refined request, within the cost limit.

Decision

The Commissioner finds that the Authority failed to comply with Part 1 of the Freedom of Information (Scotland) Act 2002 (FOISA) in responding to the information request made by the Applicant.

While the Commissioner finds that section 12(1) of FOISA constitutes appropriate grounds for refusing that part of the Applicant’s request relating to the information which was not publicly available on the Authority’s website at the time of the request, he considers that the Authority should have refused that part of the request on that basis in its review outcome, at the latest.  Instead, the Authority refused that part of the request in terms of section 38(1)(b) (Personal information) of FOISA.  In doing so, the Commissioner finds that the Authority failed to comply with section 1(1) and (6) of FOISA.

In the circumstances, the Commissioner requires the Authority to provide advice and assistance to the Applicant on how he might make a new, refined request, within the cost limit, should he wish to do so.

The Commissioner requires the Authority to take these steps by 19 May 2025.

Appeal

Should either the Applicant or the Authority wish to appeal against this decision, they have the right to appeal to the Court of Session on a point of law only.  Any such appeal must be made within 42 days after the date of intimation of this decision.

Enforcement

If the Authority fails to comply with this decision, the Commissioner has the right to certify to the Court of Session that the Authority has failed to comply.  The Court has the right to inquire into the matter and may deal with the Authority as if it had committed a contempt of court.

David Hamilton

Scottish Information Commissioner

04 April 2025