General Teaching Council for Scotland: FOI review

FOI reference: FOI/18/00053
Date received: 5 February 2018
Date responded: 27 February 2018

Information requested

• Any advice or other material (whether internal or external) regarding the role of the GTCS and/or proposed replacement of the GTCS

• Any communication (whether internal or external) regarding the role of the GTCS and/or the proposed replacement of the GTCS

• Details - including all supporting documents - of any meetings at which the role of the GTCS and/or proposed replacement of the GTCS was discussed.

Response

Further to my email of 05/02/18, I have now completed my review of our response to your request under the Freedom of Information (Scotland) Act 2002 (FOISA)

I have concluded that the original decision should be confirmed, with modifications.

I attach a copy of the email to which the letter contained in document 12 of our response refers. I apologise for the earlier inadvertent omission of this item. A small amount of personal information has been redacted from this email under Section 38(1)(b) of FOISA.

In conducting my review, I have completed a further search of our records and as such I can confirm that there is no further information held within the scope of your request.

I note that in your request for review you have asked that all exemptions are reviewed in full. I have therefore re-examined all of the information withheld falling within the scope of your request to consider the appropriateness of the exemptions applied.

I have determined that an exemption under section 29(1)(a) (formulation or development of Scottish Government policy) continues to apply to some of the information previously withheld, however I acknowledge that our initial response did not provided an further explanation of these exemptions. The reasons why these exemptions apply are detailed below.

However, I have concluded that an exemption under section 29(1)(c) (Law Officers' advice) did not apply in this case as the information previously withheld under this exemption would not fall within the definition of Law Officers advice. Having further considered this information I have determined that this is legal advice and have therefore concluded that an exemption under section 36(1)(legal advice) would apply in this instance. The reason why this exemption applies is detailed below.

I have determined that exemptions under section 30(b)(i) and 30(b)(ii) of FOISA (free and frank advice and exchange of views) and 38(1)(b) (personal information) were appropriately applied for the reasons given in our response to your initial request. I have also gone on to re-examine the public interest test in relation to these exemptions. I have taken account of all the circumstances of this case, considering if the public interest in disclosing the information outweighs the public interest in applying the exemption. I have found that, on balance, the public interest lies in favour of upholding the exemptions. I recognise that there is a public interest in disclosing information as part of open, transparent and accountable government, and to inform public debate. However, I am satisfied that there is a greater public interest in high quality policy and decision-making, and in the properly considered implementation and development of policies and decisions, particularly in the early stages of development and discussions. This means that Ministers and officials need to be able to consider all available options and to debate those rigorously, to fully understand their possible implications. Ministers and officials need a private space within which officials can provide full and frank advice to Ministers and within which Ministers and officials can discuss and explore options before the Scottish Government reaches a settled public view. In addition I believe that the information released as part of the initial response goes some way to satisfying the public interest in this case.

Reasons for not providing information

Section 29(1)(a) – formulation or development of government policy

An exemption under section 29(1)(a) of FOISA (formulation or development of government policy) applies to some of the information requested because it relates to the development of the Scottish Government's policy on education governance.

This exemption is subject to the 'public interest test'. Therefore, taking account of all the circumstances of this case, we have considered if the public interest in disclosing the information outweighs the public interest in applying the exemption. We have found that, on balance, the public interest lies in favour of upholding the exemption. We recognise that there is a public interest in disclosing information as part of open, transparent and accountable government, and to inform public debate. However, there is a greater public interest in high quality policy and decision-making, and in the properly considered implementation and development of policies and decisions. This means that Ministers and officials need to be able to consider all available options and to debate those rigorously, to fully understand their possible implications. Their candour in doing so will be affected by their assessment of whether the discussions on education governance will be disclosed in the near future, when it may undermine or constrain the Government's view on that policy while it is still under discussion and development.

Section 36(1) – legal advice

An exemption under section 36(1) of FOISA (confidentiality in legal proceedings) applies to some of the information requested because it is legal advice and disclosure would breach legal professional privilege.

This exemption is subject to the 'public interest test'. Therefore, taking account of all the circumstances of this case, we have considered if the public interest in disclosing the information outweighs the public interest in applying the exemption. We have found that, on balance, the public interest lies in favour of upholding the exemption. We recognise that there is some public interest in release as part of open and transparent government, and to inform public debate. However, this is outweighed by the strong public interest in maintaining the right to confidentiality of communications between legal advisers and clients, to ensure that Ministers and officials are able to receive legal advice in confidence, like any other public or private organisation.

About FOI

The Scottish Government is committed to publishing all information released in response to Freedom of Information requests. View all FOI responses at http://www.gov.scot/foi-responses

FOI-18-00053 - email correspondence.pdf

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