Outer House awards expenses in seven unopposed information disclosure petitions to General Teaching Council

It was argued by the respondent that as he was not permitted to disclose the material without a court order but did not oppose the petition, expenses should not be granted against him. The petitioner argued that, as the petitions were not legally necessary for the disclosure of the information, expenses ought to be granted in the usual manner.

The petitions were considered in the Outer House of the Court of Session by Lord Uist. Lindsay QC appeared for the petitioners and van der Westhuizen QC for the respondent.

Erroneous understanding

The petitioner, per the Public Services Reform (General Teaching Council for Scotland) Order 2011, has the power to investigate any registered teacher’s fitness to teach where it becomes aware of circumstances which it considers justify such an investigation, and may do anything which appears to it to be appropriate in connection with the performance of its functions. As such, it sought information from the respondent about certain persons in connection with investigations it was performing in seven separate cases.

Under Section 36 of the Data Protection Act 2018, personal data collected by Police Scotland for a law enforcement purpose cannot be processed for a purpose that is not a law enforcement purpose without legal authorisation. In December 2019, the Information Commissioner’s Office advised Police Scotland that even if another body had a statutory power to request information from the police, there was no reciprocal obligation on the part of Police Scotland to provide that information, and it may be in breach of the 2018 Act if it acceded to such a request.

It was the respondent’s position that the provisions of the 2018 Act meant that he was not permitted to disclose the information sought by the petitioner without a court order, even if he did not oppose the granting of such an order. On this basis, he opposed the granting of expenses in each petition.

Counsel for the petitioner submitted that, as it had enjoyed complete success in each petition, the usual rule of expenses following success ought to be followed. The respondent’s position was an erroneous understanding of the applicable law that had required the petitioner to incur unnecessary expense of having to proceed with the petition process. The legal regimes engaged authorised and promoted disclosure of information on public safety grounds, and accordingly the respondent ought to have disclosed the information voluntarily.

Needless expense

In his decision, Lord Uist began: “It is essential, with a view to determining the question of expenses, to decide first whether the respondent was authorised to disclose the information without a court order. In my opinion the position adopted by the respondent, as well as the advice provided to him by the ICO, was clearly wrong in law.”

He explained further: “The common law and section 32 of the [Police and Fire Reform (Scotland) Act 2012] permit the disclosure by the respondent to the petitioner of the requested material without the necessity of a court order on public safety grounds. This was made clear by Kennedy LJ in Woolgar v Chief Constable of Sussex Police (2000) and Sales J in General Dental Council v Savery and Others (2011), which seem to have been either ignored or misunderstood by the respondent and the ICO.”

Addressing whether the respondent’s non-opposition to the petitions had any effect, Lord Uist said: “The respondent, by his refusal to provide the information sought, put the petitioner to the needless expense of having to bring the petitions in the first place. The petitioner was a body operating in the field of public safety as it is responsible for ensuring that people who are a danger to children are not permitted to remain on the register and so not permitted to continue to teach.”

He continued: “The fact that both parties are public bodies is an irrelevant consideration when determining the question of expenses. So also is the fact that the respondent acted on advice from the ICO as he must take responsibility for his own decisions.”

Finding that the respondent was liable for the expenses of each petition, Lord Uist concluded: “I trust that this decision will bring an end to the erroneous practice of the respondent automatically refusing to disclose relevant information to professional or regulatory bodies without a court order.”