Decision 284/2025:  Information relating to the bullying of teachers

Authority: General Teaching Council for Scotland
Case Ref: 202501201
 

Summary

The Applicant asked the Authority for information relating to concerns about teachers being bullied or mistreated by other teachers.  The Authority disclosed some information and withheld other information on the basis that disclosure would substantially prejudice the carrying out of its statutory functions.  The Commissioner investigated and found that the Authority was entitled to withhold some of the withheld information, but not all of it.  He required the Authority to disclose the wrongly withheld information to the Applicant.

Relevant statutory provisions

Freedom of Information (Scotland) Act 2002 (FOISA) sections 1(1), (2) and (6) (General entitlement); 2(1)(b) (Effect of exemptions); 35(1)(g) and (2)(b), (c) and (d)(ii) (Law enforcement); 47(1) and (2) (Application for decision by Commissioner).

The Public Services Reform (General Teaching Council for Scotland) Order 2011 (the 2011 Order) articles 6(c) (General functions); 8 (Best regulatory practice); 18(3) (Fitness to teach).

Background

1. On 16 April 2025 the Applicant made a request for information to the Authority.  He asked for:

   “… a copy of all information held with regard to concerns about teachers being bullied or mistreated by other teachers.  To help narrow this down I want to know if [the Authority] is aware of this issue and if so what actions has it taken to address it in the profession’s best interest.”

2. On 23 April 2025, the Authority contacted the Applicant and requested clarification of the information requested by the Applicant.  Specifically, it asked him whether there was a particular time period that applied to his request and whether there were any specific parties he considered relevant.
3. Later that same day, the Applicant clarified that he was seeking information for the last four years and that he considered bullying by headteachers to fall into scope.
4. The Authority responded on 29 May 2025.  It disclosed some information to the Applicant and withheld other information under the exemptions in sections 35(1)(g) and 38(1)(b) of FOISA.
5. The Authority also informed the Applicant that, in terms of what information it held in relation to “what actions have been taken”, it would hold outcomes in a Fitness to Teach matter where an individual is the subject of a referral involving bullying.  It said that, due to the significant amount of time and resources it would take to locate and retrieve these records, it had determined that section 12(1) of FOISA applied to this element of his request.
6. On 24 June 2025, the Applicant wrote to the Authority requesting a review of its response. He stated that he was dissatisfied with the Authority’s application of the exemption in section 35(1)(g) of FOISA being applied to the “feedback” provided to the Authority.
7. The Authority notified the Applicant of the outcome of its review on 22 July 2025, which fully upheld its original decision.
8. On 24 July 2025, the Applicant wrote to the Commissioner, applying for a decision in terms of section 47(1) of FOISA.  He stated that he was dissatisfied with the outcome of the Authority’s review because he considered that it was not entitled to rely on the exemption in section 35(1)(g) of FOISA to withhold the information requested. 

Investigation

9. The Commissioner determined that the application complied with section 47(2) of FOISA and that he had the power to carry out an investigation.
10. On 14 August 2025, 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.
11. 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 related to the prejudice that the Authority anticipated arising.
12. The Applicant did not raise dissatisfaction in either his requirement for review or application to the Commissioner with the information withheld by the Authority under the exemption in section 38(1)(b) of FOISA.  The Commissioner will therefore not consider the information withheld under this exemption in his decision notice.

Commissioner’s analysis and findings

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

Section 35(1)(g) – Law enforcement

14. The Authority withheld information in three documents under the exemptions in sections 35(1)(g) and 38(1)(b) of FOISA.
15. As some information was withheld under both of these exemptions, the Commissioner will not consider that information in his decision notice.  This is because, even if he had found the Authority was not entitled to apply the exemption in section 35(1)(g) of FOISA to that information, he could not require the Authority to disclose it to the Applicant as it had also applied the exemption in section 38(1)(b) of FOISA (which the Applicant did not challenge) to that information.
16. The Commissioner’s decision notice is therefore restricted to considering the information solely withheld under the exemption in section 35(1)(b) of FOISA (i.e. a small amount of information in Document 1).
17. Under section 35(1)(g) of FOISA, information is exempt information if its disclosure under FOISA would, or would be likely to, prejudice substantially the exercise by any public authority (as defined by the Freedom of Information Act 2000) or Scottish public authority (as defined by FOISA) of its functions for any of the purposes listed in section 35(2) of FOISA. (The Authority is a Scottish public authority as defined by FOISA.)
18. Section 35(1)(g) is a qualified exemption in that it is subject to the public interest test set out in section 2(1)(b) of FOISA.  In addition, the exemption can only apply where substantial prejudice would, or would be likely to, occur as a result of the disclosure of the information.
19. There is no definition in FOISA of "substantial prejudice", but the Commissioner's view is that the harm in question must be of real and demonstrable significance.  An authority must also be able to satisfy the Commissioner that the harm would, or would be likely to, occur and therefore needs to establish a real risk or likelihood of actual harm occurring as a consequence of disclosure at some time in the near (certainly the foreseeable) future, not simply that the harm is a remote possibility.
20. The Commissioner must, therefore, consider three separate matters: 

    1. Does the Authority have a function in relation to one or more of the purposes mentioned in section 35(2) of FOISA? 

    2. If it does, would disclosure of the information prejudice substantially, or be likely to prejudice substantially, the Authority's ability to exercise that function? 

    3. If such prejudice would, or would be likely to, occur, does the public interest in maintaining the exemption outweigh that in disclosure of the information?

The Applicant’s submissions

21. The Applicant said that he did not see how disclosure of the withheld information would result in the harm required for the exemption in section 35(1)(g) of FOISA to be engaged.  More specifically, he explained that he did not see how disclosure of the “feedback” would adversely affect the Authority in the performance of its functions.
22. The Applicant noted that the Authority had disclosed its response to the third party who had provided the feedback.  He submitted that this was a potential contradiction – in other words, the Authority would not disclose its response to the concerns raised for fear it would adversely impact it, but it was not an issue for the Authority to disclose what it had said in response to these concerns.

The Authority’s submissions

23. The Authority argued that disclosure of the information requested would, or would be likely to, prejudice substantially the exercise of its functions for three of the purposes specified in section 35(2) of FOISA: 

    1. to ascertain whether a person is responsible for conduct which is improper (section 35(2)(b)); 

    2. to ascertain whether circumstances which would justify regulatory action in pursuance of any enactment exist or may arise (section 35(2)(c)); and 

    3. to ascertain a person’s fitness or competence in relation to any profession or other activity which the person is, or seeks to become, authorised to carry on (section 35(2)(d)(ii)).

24. The Authority explained that the withheld information contained the opinions and anecdotal submissions of a third party made in relation to teaching within Scotland.  It noted that the email referenced self-gathered reporting from respondents and, as the sample data did not accompany the email, it could not evaluate the information reported by the third party.
25. The Authority explained that the withheld information discussed concerns reported by the respondents, which were sensitive in nature and which were indicative of the sensitivity inherent in the work of the Authority.  It argued that disclosure of this inherently sensitive information would only act to discourage not only any respondents who may have interacted with the author of the email, but any requester who may choose to interact with the Authority in the future.
26. The Authority explained that, as a body, it is responsible for the regulation of teachers, which includes administering a Fitness to Teach process.  This requires confidentiality, both for the Authority and for those who volunteer to interact with the Authority as the statutory body regulating teachers.  It said that ensuring confidentiality and discretion with sensitive information is critical to ensuring this statutory function.
27. More specifically, the Authority argued that if correspondents cannot expect a level of confidentiality in their communications with the Authority, its ability to receive anonymous and sensitive information and to convince witnesses that they can come forward with an assurance of privacy will be compromised.   It said this would fundamentally prejudice the Authority’s statutory function in ensuring proper regulation of the teaching profession.

Does the Authority have a function in relation to section 35(2) of FOISA?

28. Article 6(c) of The Public Services Reform (General Teaching Council for Scotland) Order 2011 (the 2011 Order) states that one of the Authority’s general functions is “to investigate the fitness to teach of individuals who are, or who are seeking to be, registered”.  In addition, article 18(3) of the 2011 Order states that an individual shall be considered unfit to teach “if [the Authority] considers that the individual’s conduct or professional competence falls significantly short of the standards expected of a registered teacher”.  Furthermore, article 8 of the 2011 Order requires the Authority to exercise its functions in accordance with “best regulatory practice”.
29. The Commissioner agrees with the Authority (as he did in Decision 227/2024[1]) that it has a function in relation to section 35(2)(b) of FOISA.  He also agrees that the Authority has a function in relation to section 35(2)(c) and (d)(ii) of FOISA.

Would disclosure prejudice the exercise of that function?

30. The Commissioner does not agree with the Applicant that there is necessarily any tension or contradiction in withholding some information while disclosing other, connected, information.
31. The Commissioner agrees that the Authority benefits from a strong expectation of confidentiality to protect its investigative functions.   He also accepts that the Authority’s interests in protecting its investigative functions extend beyond its formal investigations to gathering background information and maintaining channels through which allegations can be made in confidence.
32. Although the withheld information in question does not consist of a specific allegation, it provides material that is relevant (or, at least, potentially relevant) to the Authority’s regulatory role.  The Commissioner understands why the Authority wishes to protect such a channel, in order to maintain the confidence of those who do wish to raise allegations relevant to its statutory functions.
33. However, having considered the content and nature of the withheld information, the Commissioner is not satisfied that disclosure of the majority of this information would substantially reduce the expectation of privacy associated with providing sensitive information to the Authority.
34. The Commissioner notes that the withheld information was provided by a third party that wished to raise what they considered a “serious issue regarding the experience of teachers across Scotland”. The Authority confirmed to the Commissioner that it did not consult the third party that originally shared the withheld information due to data protection concerns.  In the absence of any such specific evidence, it is not clear to the Commissioner why the third party would be inhibited from sharing information with the Authority by the disclosure of information in which it shared concerns about a serious issue that they appeared to wish to raise awareness of.
35. While the Commissioner acknowledges the Authority’s concern regarding the wider impact of disclosure of the withheld information in this case, it is important for public authorities to treat each request for information on a case-by-case basis.  That information should be disclosed in one case should not be taken to imply that information of a particular type will be routinely disclosed in future.  The circumstances of each case, including the content of the specific information under consideration, must be taken into consideration and (where required) the public interest in each case assessed on its own merits.
36. Having carefully considered the Authority’s submissions, the nature of the withheld information and that each request for information should be considered on a case-by-case basis, the Commissioner is not persuaded that disclosure of the majority of the withheld information would result in the harm required for the exemption in section 35(1)(g) of FOISA to be engaged.
37. In all the circumstances, the Commissioner is not satisfied, on balance, that disclosure of the majority of the withheld information would have prejudiced substantially, or would have been likely to prejudice substantially, the exercise of the Authority’s functions for the purpose mentioned in section 35(2)(b), (c) and (d)(ii) of FOISA.  He requires the Authority to disclose this information to the Applicant.  (This will be indicated on a marked-up copy of the withheld information, to be provided to the Authority along with this decision notice.)
38. However, the Commissioner notes that there is a small amount of information that is more specific.  In all the circumstances, he is satisfied, on balance, that disclosure of this specific (and sensitive) information would have prejudiced substantially, or would have been likely to prejudice substantially, the exercise of the Authority’s functions for the purpose mentioned in section 35(2)(b), (c) and (d)(ii) of FOISA.  Consequently, he is satisfied that this information is exempt from disclosure in terms of section 35(1)(g) of FOISA.

Does the public interest in maintaining the exemption outweigh that in disclosure of the information?

39. As stated above, the exemption in section 35(1)(g) is subject to the public interest test set out in section 2(1)(b) of FOISA.  This means that, even although the Commissioner is satisfied that the disclosure of the information falling within scope of the Applicant’s request would, or would be likely to, prejudice substantially the carrying out by the Authority, of its relevant functions, the Commissioner must still order the report to be disclosed unless he is satisfied that, in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosure of the information.
40. The Applicant submitted that the withheld information indicated a “serious issue” and argued that it was therefore in the public interest to see what issue was raised with the Authority for reasons of transparency and accountability, given the important functions the Authority is responsible for.
41. More specifically, the Applicant argued that if matters had reached the point that individuals were raising serious teacher safeguarding concerns with the Authority, then it was in the public interest for that information to be disclosed given concerns about education in Scotland.
42. The Authority acknowledged the clear public interest in the transparency and accountability of public authorities, particularly in relation to their regulatory functions.  It highlighted that it published substantial information about this on its website.  However, it also submitted there is considerable public interest in the Authority entering discussions with stakeholders and protecting the information of those third parties to ensure those relationships are not compromised.
43. The Authority noted that the Applicant had said, if individuals had raised serious teacher safeguarding concerns with the Authority, then it was in the public interest that this information be disclosed given the concerns about education in Scotland.  However, the Authority reiterated that it had published information on its website relating to bullying and harassment in the profession (including a recent equality survey of provisionally registered teachers and a snapshot report).
44. In summary, while it acknowledged that the issue in question was in the public interest, it considered that the public interest in maintaining the exemption in section 35(1)(g) of FOISA outweighed the public interest in disclosure.
45.  The Commissioner has considered the submissions from both parties, together with the remaining withheld information.
46. The Commissioner notes that the information to which he has found the exemption in section 35(1)(g) of FOISA is engaged by is highly specific.  Consequently, he considers that disclosure of this information would add little to the transparency and accountability of the Authority or to the wider understanding of concerns about education in Scotland.
47. The Commissioner acknowledges that, in order to perform its functions, the Authority must have the ability to receive certain information in confidence, safe in the knowledge that information will not routinely be publicly disclosed, and where necessary, to allow it to investigate allegations in the exercise of its statutory functions.
48. Taking account of all the circumstances of this case, including the nature of the withheld information concerned, the Commissioner is satisfied that the public interest in maintaining the exemption outweighs that in disclosure.  Consequently, he finds that the Authority was entitled to withhold the information in question under the exemption in section 35(1)(g) of FOISA.

Decision 

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

The Commissioner finds that by correctly withholding certain information under the exemption in section 35(1)(g) of FOISA, the Authority complied with Part 1.

However, by wrongly withholding other information under the exemption in section 35(1)(g) of FOISA, the Authority failed to comply with Part 1 (and, in particular, section 1(1)) of FOISA

The Commissioner therefore requires the Authority to provide the Applicant with the incorrectly withheld information, by 23 January 2026.    

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.

Euan McCulloch 

Head of Enforcement 

9  December 2025