Clare Page v The Information Commissioner & Anor

This appeal concerns the following request made on 7 December 2021:

The Trust replied on 21 January 2022.

The Trust withheld the SoSE materials requested in parts (1) and (2), relying on section 43 FOIA (commercial interests).

The Trust provided some of the information requested in parts (3) and (4) (week 8 materials and PHSE/RSE lesson plans for the current term).

The Trust withheld the information requested in parts (5), (6), and (7) on the basis that it was personal data.

The Trust provided the information requested in part (8).

Ms. Page requested an internal review on 28 January 2022. The Trust upheld its refusal in relation to parts (1) and (2) and raised section 41 in addition on 4 March 2022.

Ms Page referred the matter to the Commissioner on 19 May 2022.

In a decision notice dated 29 September 2022 the Commissioner decided that section 41(1) and section 40(2) were engaged and that the Trust did not hold any further information within part (3). He did not consider the other exemptions raised by the Trust.

The information in scope of parts (1) and (2) of the request was a set of powerpoint slides provided to the Trust by SoSE. The Commissioner was satisfied that the information was obtained from another person and that SoSE was a legal person capable of bringing a legal action. Having reviewed the withheld information, whilst the Commissioner recognised that the material drew from a variety of sources, he concluded that it was SoSE’s intellectual property. The Commissioner concluded that the material was not trivial. The Commissioner was satisfied that it had the necessary quality of confidence.

The Commissioner concluded that the information had been provided to the Trust for a specific limited purpose and the Trust was only supposed to retain the information for a very short period of time. He accepted that the Trust was not permitted to further distribute it and was supposed to delete it immediately afterwards. The Commissioner was satisfied that when SoSE provided the information to the Trust, as opposed to when it presented the material in the course of a lesson, it set explicit conditions of confidence which it should reasonably have expected the Trust to maintain. The Commissioner determined that any reasonable person, standing in the shoes of the Trust, should have realised that an obligation of confidence had been invoked.

The Commissioner concluded that SoSE had the right to exploit its own intellectual property for commercial gain and that making the information available to the world would take away that right. The Commissioner concluded that fewer schools were likely to pay SoSE to deliver the same lesson where material was readily available for free. The Commissioner concluded that once the information was disclosed to the world, SoSE would find it difficult to enforce any remaining intellectual property rights. The Commissioner was satisfied that breaching the confidence would cause detriment to SoSE.

The Commissioner was not satisfied that the Trust would be able to mount a viable public interest defence. Having reviewed the withheld information, the Commissioner did not consider that there was anything within the material that clearly mis-represented the law or was so obviously inappropriate as to justify over-riding the Trust’s duty of confidence.

The Commissioner recognised that, in this area, parents have rights to decide what is, or is not, taught to their child. He notes that those rights cannot be exercised in a meaningful way without parents being aware of the subject matter their children are likely to be taught. However he concluded that unrestricted disclosure was not a proportionate or necessary means of achieving any legitimate interest in keeping parents informed.

Given that the Trust had provided a plausible explanation, supported by evidence, explaining why the material Ms Page asserted was missing never existed and therefore could not be held, the Commissioner was satisfied that, on the balance of probabilities, the Trust had provided all the information it held within the scope of part (3).

The Commissioner was satisfied that the requested information fell within the definition of personal data. The Commissioner took a cautious approach to the dispute as to whether the names of the representatives were on the SoSE website at the time of the request, and assumed that they were not. Further the Commissioner noted that the request was for the actual representatives who attended the Trust’s premises and nothing on the websites identified the particular individuals who had delivered the lesson.

The Commissioner recognised that there was a legitimate interest in understanding which individuals are being given access to schools and that parents have a legitimate interest in ensuring that their children are not going to come into contact with individuals who would pose a risk. He recognised that there was a broader legitimate interest in ensuring that public authorities were being transparent and accountable. The Commissioner was not satisfied that disclosure was necessary to meet the legitimate interest in disclosure and concluded that the processing was unlawful. The Commissioner concluded that the Trust was entitled to withhold the information under section 40(2).

Ms. Page’s grounds of appeal are as follows:

The Commissioner erred in holding that the information requested under part (1) could be withheld in reliance upon s.41 of the FOIA:

The Commissioner erred in holding that information requested under (5), (6) and (7) was exempt as personal data:

The Commissioner erred in accepting that no further information was held in relation to part (3) of the request.

The Commissioner submits that section 405 of the Education Act 1996 (EA 96) does not give rise to an implied obligation to disclose the slides:

The Commissioner argues that even if there was such an obligation, the Trust would be able to rely on section 21 FOIA (information reasonably accessible by other means). Even if section 405 affords Ms Page a right of access to the slides, it does not follow that the general public has such a right.

The Commissioner submits that the absence of a statutory obligation (supported by statutory guidance) on the Trust to disclose all written materials and lesson plans suggests that Parliament does not consider disclosure of such information will generally be in the public interest. The public interest in parents knowing what sex education will or has been provided to their children is accounted for in the existing statutory scheme which provides, according to the statutory guidance, for access to “details of content / scheme of work” (para 16), “examples of resources” that a school “plan[s] to use” (para 24) , and “clear information … on the subject content” (para 38).

The Commissioner acknowledges that there may be exceptional circumstances where FOIA requires that written materials and/or lesson plans for a specific sex education class should be disclosed. However, the Commissioner has detected nothing in the PowerPoint slides which would give rise an exceptional public interest in favour of disclosure.

Any residual public interest in disclosure specific to Ms Page’s circumstances is further addressed by (a) the disclosure by the Trust, in response to Ms Page’s information request, of a number of lesson plans and lesson materials produced by the School; (b) the fact that the Trust made arrangements for Ms Page to be shown the PowerPoint slides under restricted conditions; and (c) the fact Ms Page’s complaint to the Trust was investigated and dismissed by an independent panel as part of the Trust’s complaint procedures.

Insofar as the Trust has failed in its statutory obligations to properly consult and provide sufficient information to parents to make a meaningful decision about sex education, it is not proportionate to rectify any failings on the Trust’s part by disclosure of the slides to the world at large under FOIA.

In relation to Ms Page’s argument on the public interest in upholding the duty of confidence:

The Commissioner submits that Ms Page is unable to demonstrate the Trust would be able to mount a successful public interest defence if the slides were disclosed in breach of confidence.

In relation to section 43 FOIA, the Commissioner relies on the decision notice and its submissions on section 41.

The Commissioner accepted in the decision notice that there was a legitimate interest in parents understanding which individuals are being given access to schools.

The Commissioner accepts that the Trust appears to have failed to include the names of the individuals from SoSE in its sex education policy, as required by the Statutory Guidance, and that this strengthens Ms Page’s arguments that disclosure is reasonably necessary. However, in all the circumstances, the Commissioner maintains that disclosure would not be necessary:

If the Commissioner is wrong that disclosure was not reasonably necessary, then he submits that the balancing exercise still firmly favours non-disclosure.

The Commissioner submits that the legitimate interests of parents at the School to know which individuals have taught their children sex education and a broader legitimate interest in ensuring that public authorities are being transparent and accountable do not attract significant weight for the reasons given in the above section on whether disclosure is reasonably necessary.

The Commissioner submits that Ms Page is wrong to argue that the individuals’ right to privacy should be given very limited weight:

There is no convincing basis to re-open this issue. The explanation given by the Trust was plausible and supported by evidence, and the Commissioner was right to accept that explanation on the balance of probabilities.

Section 41 provides, so far as relevant:

The starting point for assessing whether there is an actionable breach of confidence is the three-fold test in Coco v AN Clark (Engineers) Ltd [1969] RPC 41, read in the light of the developing case law on privacy:

The common law of confidence has developed in the light of Articles 8 and 10 of the European Convention on Human Rights to provide, in effect, that the misuse of ‘private’ information can also give rise to an actionable breach of confidence. If an individual objectively has a reasonable expectation of privacy in relation to the information, it may amount to an actionable breach of confidence if the balancing exercise between article 8 and article 10 rights comes down in favour of article 8.

Section 41 is an absolute exemption, but a public interest defence is available to a breach of confidence claim. Accordingly there is an inbuilt balancing of the public interest in determining whether or not there is an actionable breach of confidence. The burden is on the person seeking disclosure to show that the public interest justifies interference with the right to confidence.

Section 21 provides, insofar as relevant:

The relevant parts of section 40 of FOIA provide:

Personal data is defined in section 3 of the Data Protection Act 2018 (DPA):

This is in line with the definitions in the UK General Data Protection Regulation (UK GDPR). The tribunal takes the view that the recitals to the GDPR 2016/679 are a useful guide to the interpretation of the UK GDPR. Recital 26 to the GDPR is relevant, because it refers to identifiability and to the means to be taken into account:

The definition of "personal data" consists of two limbs:

Whether the data in question "relate to" a living individual and

Whether the individual is identified or identifiable, directly or indirectly, from those data.

The tribunal is assisted in identifying ‘personal data’ by the cases of Ittadieh v Cheyne Gardens Ltd[2017] EWCA Civ 121;Durant v FSA [2003] EWCA Civ 1746and Edem v Information Commissioner[2014] EWCA Civ 92. Although these relate to the previous iteration of the DPA, we conclude the following principles are still of assistance.

In Durant, Auld LJ, giving the leading judgment said at [28]:

In Edem Moses LJ held that it was not necessary to apply the notions of biographical significance where the information was plainly concerned with or obviously about the individual, approving the following statement in the Information Commissioner's Guidance:

The High Court in R (Kelway) v The Upper Tribunal (Administrative Appeals Chamber) & Northumbria Police [2013] EWHC 2575 held, whilst acknowledging the Durant test, that a Court should also consider:

Personal data of which the applicant is the data subject is always exempt by virtue of section 40(1) FOIA. In relation to other personal data, the data protection principles are set out Article 5(1) of the UK GDPR. Article 5(1)(a) UK GDPR provides: that personal data shall be processed lawfully, fairly and in a transparent manner in relation to the data subject. Article 6(1) UK GDPR provides that processing shall be lawful only if and to the extent that at least one of the lawful bases for processing listed in the Article applies.

The only potentially relevant basis here is article 6(1)(f):

The case law on article 6(1)(f)’s predecessor established that it required three questions to be answered, which we consider are still appropriate if reworded as follows:

Lady Hale said the following in South Lanarkshire Council v Scottish Information Commissioner [2013] 1 WLR 2421 about article 6(1)(f)’s slightly differently worded predecessor:

Section 40(2) is an absolute exemption and therefore the separate public interest balancing test under FOIA does not apply.

Section 43(2) provides:

“Information is exempt information if its disclosure under this Act, would, or would be likely to prejudice the commercial interests of any person (including the public authority holding it)”  

‘Commercial interests’ should be interpreted broadly. The ICO Guidance states that a commercial interest relates to a person’s ability to participate competitively in a commercial activity.  

The exemption is prejudice based. ‘Would or would be likely to’ means that the prejudice is more probable than not or that there is a real and significant risk of prejudice. The public authority must show that there is some causative link between the potential disclosure and the prejudice and that the prejudice is real, actual or of substance. The harm must relate to the interests protected by the exemption.  

Section 43 is a qualified exemption, so that the public interest test has to be applied. 

In considering the factors that militate against disclosure the primary focus should be on the particular interest which the exemption is designed to protect.

In APPGER v ICO [2013] UKUT 0560 (AAC) the Upper Tribunal gives guidance on how the balancing exercise required by section 2(2)(b) of FOIA should be carried out (paragraph 75):

“… when assessing competing public interests under FOIA the correct approach is to identify the actual harm or prejudice that the proposed disclosure would (or would be likely to or may) cause and the actual benefits its disclosure would (or would be likely to or may) confer or promote. This … requires an appropriately detailed identification of, proof, explanation and examination of both (a) the harm or prejudice, and (b) benefits that the proposed disclosure of the relevant material in respect of which the exemption would (or would be likely to or may) cause or promote.”

Under section 9 of the Education Act 1996 the Secretary of State and Local Authorities are required to “have regard to the general principle that pupils are to be educated in accordance with the wishes of their parents, so far as that is compatible with the provision of efficient instruction and training and the avoidance of unreasonable public expenditure.”

Under section 80A of the Education Act 2002 (as amended) the Secretary of State must give guidance about the provision of education under section 80, including section 80(d) “provision for relationships and sex education for all registered pupils at the school who are provided with secondary education”.

Under section 80B(1) the Governing Body of a maintained school must:

“(a)

make, and keep up to date, a separate written statement of their policy with regard to the provision of education under each of paragraphs (1)(c) and (d) of section 80, and (b) publish a copy of the statement on a website and provide a copy free of charge to anyone who asks for one.”

Under section 80B(3) “The governing body must consult parents of registered pupils at the school before making or revising a statement under subsection (1).”

Sections 403-405 of the EA 1996 concern sex education provided by schools and require inter alia the school to have in place a “statement of policy” with regard to “sex education” (this is in addition to the requirement to have a policy for “sex and relationship” education):

Under section 405 a parent can withdraw a child from sex education either “wholly or partly”:

Schools must have regard to the relevant statutory guidance and where they depart from the guidance, they must have good reason for doing so. The relevant statutory guidance is “Relationships Education, Relationships and Sex Education (RSE) and Health Education, Statutory guidance for governing bodies, proprietors, head teachers, principals, senior leadership teams, teachers” (September 2020) (“The Statutory Guidance”).

The Statutory Guidance is issued, in part, under section 403 which provides in (1A) that:

The Statutory Guidance provides that all schools must have in place a written policy for Relationships Education and RSE:

“15.

All schools must have an up-to-date policy, which is made available to parents and others. Schools must provide a copy of the policy free of charge to anyone who asks for one and should publish the policy on the school website.”

Under paragraph 16 the policy should ‘Set out the subject content, how it is taught and who is responsible for teaching it.’

Paragraph 16 sets out that typical policies are likely to include sections covering:

Paragraph 23 provides that:

Paragraph 24 provides that:

Under the heading “Working with parents/carers and the wider community” the Statutory Guidance states:

Paragraph 52, under the heading ‘Working with external agencies’ provides:

The tribunal’s remit is governed by s.58 FOIA. This requires the tribunal to consider whether the decision made by the Commissioner is in accordance with the law or, where the Commissioner’s decision involved exercising discretion, whether he should have exercised it differently. The tribunal may receive evidence that was not before the Commissioner and may make different findings of fact from the Commissioner.

The issues for the tribunal to determine under s 41 are:

The issues for the tribunal to determine under s 40(2) are:

The question of whether information is held is determined on the balance of probabilities.

As it was not necessary for us to consider the other sections of FOIA, we have not set out the issues arising from those sections.

We took account of a closed an open bundle of documents. We admitted and took account of further evidence from both parties on the second day of the hearing in the form of archived screenshots of the second respondent’s website.

We heard evidence and read witness statements from Ms Page and Ms Padalia (the chief executive of the second respondent). Any necessary findings of fact are incorporated into our discussion and conclusions below.

The following gist of the closed part of the hearing was provided to the appellant:

The representatives of the appellant and the second respondent made oral submissions at the hearing. The appellant also filed a skeleton argument.

Ms Gannon submitted that understanding the backdrop of education law is important when considering the public interest balance.

Ms Gannon highlighted that, based on the legislative framework, there is a foundational principle that parents can educate their children as they see fit. This is reflected in article 2 of Protocol No.1 of the European Convention on Human Rights, which provides that:

Ms Gannon noted that there is an obligation on schools, under sections 406 and 407 of the Education Act 1996 (‘the 1996 Act’), to provide non-partisan teaching on political issues.

Ms Gannon took the tribunal through the statutory framework and the Statutory Guidance relating to sex education. She submitted that the requirement, in paragraph 16 of the Statutory Guidance, that the written policy for Relationships Education and RSE should set out ‘who is responsible for teaching it’ meant that the individual’s name should be included in the policy. She submitted that it was not enough to name the organisation responsible for teaching RSE.

Ms Gannon submitted that paragraph 24 of the Statutory Guidance cannot be interpreted as referring to a sample of the teaching materials, because the purpose is to enable conversations to be continued at home. It must therefore mean all the material. Paragraph 24 provides:

Ms Gannon noted that RSE was in scope for Ofsted inspection, and asks if the school does not retain teaching materials, how it can be subject to accountability via Ofsted inspection.

Ms Gannon submitted that if section 41 did not apply, then an argument based on section 43 would also fail.

Ms Gannon argued that it is a necessary implication of section 405 of the 1996 Act and the right to withdraw in part that parents know what they are withdrawing from. Unless they receive the material in advance in full, the power to withdraw ‘in part’ is meaningless. A minor effect on common law rights that cut across that purpose does not prevent this being a correct interpretation.

She submits that if that is right, the School is not acting within its powers to agree with SoSE that the material could be subject to conditions of confidence restricting the access of parents. Even if section 405 does not give rise to a right to access materials, it still weighs heavily in the public interest balance.

Ms Gannon submitted that the tribunal cannot conclude that there would be a loss of commercial advantage where all providers are required to disclose this information. It is clear from the Statutory Guidance, and if not, from the letter of the Secretary of State for Education that schools are not expected to work with external providers who will not allow schools to share this type of material. Therefore all providers are in the same position and there is no detriment to one provider in particular.

SoSE normally run through the session in advance with the schools, so schools already have the opportunity to cancel the session and deliver it themselves using SoSE’s materials.

Ms Gannon submitted that the Statutory Guidance makes clear that there is a general public interest in disclosure of what is taught to children in publicly funded schools.

It was submitted that there is strong public interest in Ms Page and other parents knowing what sex education has or will be provided to their children. This is in line with the government position. The Statutory Guidance provides that parents should be informed of the content, which enables parents to meaningfully decide whether to exercise their statutory right to withdraw. It enables them to consider whether the teaching is in conformity with their views, and to continue conversations at home. It makes effective their right to complain if they consider that the content is partisan, not age appropriate, unsafe or not best practice. This is illustrated by the fact that Ms Page was not able to complain effectively without access to the materials.

Ms Gannon submitted that this general public interest is strengthened for the following reasons.

Ms Gannon submits that it is overstating the matter to say that disclosing one set of slides would be ‘fatal’. All providers are expected to disclose this information. If others seek to use it, it can be protected by copyright. There is no threshold of ‘exceptionality’. The usual public interest balance should apply.

It is not necessary to set out Ms Gannon’s submissions on section 21.

Ms Gannon submits that the government recognises that there is a legitimate interest in knowing who is teaching RSE. The Statutory Guidance provides that the name of those teaching it should be available on the School’s website. Knowing the name will enable Ms Page to prepare herself to respond to questions that her daughter might have and to complain effectively.

Ms Gannon argues that knowing the names is reasonably necessary because it will allow Ms Page to discuss the information with her daughter, it may allow her to better understand what had been taught, and will better equip her to answer any questions about what that individual may have said or may have said online separately.

Ms Gannon submits that there is no evidence of any steps the School took to vet the individuals. The SoSE vetting process allowed individuals who work in the adult sex toy industry to work as facilitators. Parents who might feel uncomfortable with those individuals teaching their child are left in a bizarre space where they are allowed to complain but do not know who to complain about.

Ms Gannon argues that knowing that an individual is qualified and has had a DBS check is insufficient. Knowing the identity allows a parent to look up that individual’s website, LinkedIn profile, the public statements they have made and articles they might have written. Parents are able to see the materials their child might have found if they had googled that person.

The Commissioner argues that the consent session has already been delivered so there is no live risk. Ms Gannon submits that there was an intention at the relevant time to invite SoSE back to the School to deliver more sessions, and there remained a live risk that a child, having been taught by someone potentially inappropriate, would find material about them online and a parent would be unable to provide answers.

Ms Gannon submits that the balance falls in favour of disclosure. Information relating to an individuals’ professional role has less weight than their private life. It is a public facing role. In the light of the Statutory Guidance there cannot be a legitimate expectation of privacy. The closed evidence was that one individual had a social media presence online and that reference was made to A’s affiliation with SoSE on their website and LinkedIn profile. This weighs heavily against the right to privacy outweighing the right to know who is teaching a child.

Ms Gannon notes that there is no confidentiality agreement entered into between SoSE and the School in advance setting out that identities cannot be disclosed. Parents are not told in advance that they would not be told who was teaching their child. The reality is that SoSE adopts an inconsistent approach. Sometimes they are willing to disclose and sometimes not.

Ms Gannon argues that the Commissioner and the second respondent rely on vague assertions of harassment. It is concerned with name calling, aggressive statements on Twitter and hate mail. No examples were given and no examples of hate mail included in evidence. It was not serious enough to report to the police and nobody has had their social media account suspended as a result. It is not sufficient to outweigh the significant interest in Ms Page knowing who taught her child.

Ms Page is concerned that documents are missing. This is heightened by the fact that the documents that are said to be missing are those that the School may have considered most controversial. All that the Trust did to search for the documents was liaise with the PHSE lead who explained that the materials had not been created.

Ms Gannon submits that the PHSE lead might have said that for any number of reasons. She might not have understood the question, another member of staff might have prepared it, or she might have wanted to avoid scrutiny. Other electronic searches could have been done, and other members of staff could have been asked. The appellant asks that the School be required to conduct a reasonable search for the requested information.

SoSE do not accept that there is an implied obligation under section 405 and adopt the Commissioner’s arguments on this point.

It is not disputed that RSE is treated differently from other subjects and that a great deal is done to ensure that parents have the information available to make decisions on whether to withdraw their children from class in part or as a whole. This is not limitless and FOIA is not the only or the appropriate means for a parent to obtain the information sought.

SoSE’s approach is to engage with parents. In this case SoSE responded quickly to the request from the School for information, explained what could be shared and how, and continued to suggest ways to meet Ms Page’s request.

In advance of the lesson on consent, Ms Page had been content to make her decision not to withdraw her child based only on the title of the session, without asking for further information or who was delivering the session.

Miss Wright submits that if Ms Page felt that the circumstances in which she was shown the slides were not adequate or appropriate she has had every opportunity to ask to view the slides under different circumstances. In the email dated 8 November 2021 SoSE state: ‘We're also very happy to explore some alternative solutions, e.g. one of our team could attend a meeting with the parent where we show them the slide on one of our devices and talk them through the content?’ (p D188)

Miss Wright submits that the letter from the Secretary of State dated 31 March 2023 does not set out a hard and fast rule and is addressing circumstances where the information has not been shared with parents at all.

Miss Wright argues that no viable public interest defence would be available to the School. There is a strong interest in preserving confidences, therefore there must be an even stronger public interest in disclosure to override the duty of confidence. In circumstances where only one talk was provided by SoSE at this School, unrestricted disclosure is neither a proportionate nor a necessary means of achieving the legitimate interest of keeping parents informed.

She submits that there is a clearly a great risk of infringement of intellectual property rights if the slides are released to the world at large. SoSE has a long established reputation and has been delivering curriculum for some time, so there would be an obvious appeal to their material. The slides may be used by a large number of competitors. RSE is compulsory in schools and the risk may be worth running given how lengthy the process of enforcing copyright would be.

In relation to the personal data, it is accepted by SoSE that there is a legitimate interest in understanding who is being given access to schools and a broader legitimate interest in transparency and accountability. There is a legitimate interest in ensuring that individuals in schools do not pose a safeguarding risk. Disclosure of the names to the world is not necessary to meet those legitimate interests.

SoSE argue that the individuals had already delivered the session and both the School and SoSE already had an obligation to ensure the safety of the pupils. The interest is served by safeguarding policies, recruitment checks and letters of assurance. Disclosure has the potential to cause distress. There is evidence of hate mail and harassment on social media. The information already in the public domain highlights an individual’s links with SoSE but does not identify which particular individuals delivered the talk.

Section 405 of the 1996 Act gives parents a right to withdraw their child from receiving sex education:

Ms Gannon argues that this section gives rise to an implied statutory duty. The implied statutory duty is said in the grounds of appeal to be ‘…an implied statutory duty to provide parents with sufficient information so as to enable them to make a meaningful decision as to whether to action their right under s.405 of the EA 1996 to “wholly or partly” withdraw their child from sex education classes’ (paragraph 46(a) of the grounds of appeal).

It is argued in the grounds of appeal that the implied statutory duty is to provide such information to parents as is ‘necessary to make that decision’ and that ‘this includes all written materials used during any sex education lessons and detailed lesson plans for the same: i.e. the information requested.’

The implied statutory duty is referred to in the grounds of appeal and in the appellant’s skeleton argument as ‘an implied statutory duty to disclose the information requested to Ms Page, and any other parent who requested it.’

The skeleton argument states that it is a necessary implication of the language of the right under section 405 that ‘parents are entitled to curriculum materials in advance of any lessons taking place’.

First, we do not accept that a statutory duty ‘to provide parents with such information so as to enable them to make a meaningful decision as to whether to action their right under s.405 of the EA 1996 to “wholly or partly” withdraw their child from sex education classes’ would mean that there was a duty to provide parents with copies of curriculum materials, or, for example, all written materials used during any sex education lessons and detailed lesson plans.

There are other ways for parents to be provided with sufficient information to enable them to make a meaningful decision as to whether to withdraw their child. For example, parents could be provided with a detailed written summary of the content of the sessions. They could be invited to a meeting where the school explained the content of the sessions. They could be asked to attend a dry run of the session. There are no doubt many other ways in which sufficient information could be provided to enable an informed choice.

On that basis, even if it were necessary to imply a statutory duty along the lines suggested, it would not mean that the School was under a duty to disclose the information requested to Ms Page and any other parent who requested it.

Further, even if there were an implied statutory duty to provide all written materials, the provision of copies without any confidentiality restriction is not the only way to provide parents with access to those materials. For example, parents could be provided with password protected access to the written material on the condition that they do not circulate the material any further than their immediate family. Accordingly we do not accept that such an implied duty would necessarily be inconsistent with an obligation of confidence as required under section 41.

In any event, we find that it is not necessary or proper to imply a statutory duty to provide parents with sufficient information so as to enable them to make a meaningful decision as to whether to action their right under s.405 of the EA 1996 to “wholly or partly” withdraw their child from sex education classes. In the light of the words used, their context and the purpose of the legislation, we do not accept that Parliament must have meant there to be a statutory duty to provide sufficient information. The purpose of the legislation can as well be achieved by schools acting properly to provide sufficient information to parents in accordance with the Statutory Guidance.

The right to withdraw is not meaningless without a statutory duty, because under the Statutory Guidance, to which the Schools must have regard and from which they must have good reason for departing, ‘Schools must ensure that parents know what will be taught and when’, parents should be given ‘every opportunity’ to understand the ‘content’ of sex education, and schools should provide ‘examples of the resources they plan to use’.

The slides were provided to the School after the lesson had taken place. The email to which they were attached states:

We accept on the basis of this email that the slides were provided to the School in circumstances importing an obligation of confidence. The wording is akin to an express statement that the information is being provided in confidence. Any reasonable person would have realised on the basis of that email that the slides were being given to the School in confidence. We find that the information has the necessary quality of confidence. They are a unique product that has been created by SoSE. The slides were not public knowledge or publicly available.

We accept that there would be detriment to SoSE. The appellant argues that there can be no detriment because this information should be disclosed as a matter of course by all such providers. It is argued that this is now abundantly clear from the statements of Ministers. Ms Gannon submits that where schools are now advised expressly not to work with organisations that restrict the disclosure of materials, disclosure will not result in disadvantage to SoSE as it must be understood to be an expected industry norm.

The Statutory Guidance provides that parents should be given ‘every opportunity to understand the purpose and content of Relationships Education and RSE’. It also provides that schools should provide ‘examples’ of resources. We do not accept that it can be inferred from the Statutory Guidance that, as a matter of fact, providers were not restricting the disclosure of materials.

We are considering the position in January 2022. Had it already been the norm for providers to freely disclose their materials in January 2022, it is unlikely that there would have been a need for the Secretary of State to write a letter to Schools in March 2023 highlighting the difficulties arising, inter alia, from the fact that ‘some schools have already entered into contracts with providers that prevent them from sharing materials with parents’. The fact that the letter needed to be written in those terms, strongly suggests that providers were not freely disclosing their materials at the relevant time.

No doubt there are many free resources available to schools or to SoSE’s competitors that wish to write and deliver their own lessons on consent. However we accept that a ready-made set of slides created by an experienced organisation would be attractive to competitors and to schools. We accept that this would be likely to significantly decrease the appeal of engaging SoSE to deliver this particular lesson on consent. Delivering RSE lessons in schools is a major part of SoSE’s business. Enforcing copyright is slow, expensive and uncertain. In our view this amounts to a detriment.

We accept that there is already a risk, in theory, that some schools who use SoSE could withdraw after they have seen the slides and deliver the sessions themselves. We do not accept that this is likely, and we do not accept that it significantly decreases the impact of the detriment set out above.

Although section 41 is an absolute exemption there is nonetheless a public interest balance for the tribunal to undertake. Breach of confidence will not be actionable if the breach is in the public interest.

We are considering the public interest in disclosure to Ms Page as a member of the public i.e. we must consider the public interest in disclosure to the world. We are not considering the public interest in disclosure to the parents of children who were present in that consent class, or to one particular parent.

We note that SoSE indicated in an email dated 8 November 2021 to the School that they were willing to attend ‘a meeting with the parent where we show them the slides on one of our devices and talk them through the content’. It appears that the School did not pass this offer on to Ms Page. It is also evident that by this stage the relationship between Ms Page and the School had broken down to the extent that Ms Page had moved on to making a formal complaint and, shortly after, a freedom of information request.

Whatever the state of Ms Page’s personal relationship with the School, it is clear that SoSE were willing to attend a meeting with Ms Page or any other parent and show them the slides. If Ms Page had asked for another opportunity to view the slides we find, in the light of that email, that the answer from SoSE would have been positive.

We accept that it may have been reasonable in Ms Page’s particular circumstances, given the particular background of her dispute with the School, for Ms Page not to have asked for another opportunity to go through the slides in a meeting. However, when considering the public interest in disclosure to the world, we do this in the knowledge that SoSE were willing to attend a meeting with a parent whose child had attended the session to show them the slides and to talk through the content. We accept Ms Padalia’s evidence that this offer accords with SoSE’s general practice of offering to run through the sessions with parents.

These factors significantly reduce the public interest in ordering disclosure of these slides to the public in general.

We accept that there is a very strong public interest in parents being properly aware of the materials that are being used to teach sex education to their children.

We accept that there is a very strong public interest in curriculum materials and lesson materials on sex education being shared with parents in advance of the lessons so that they can make an informed decision as to whether or not to withdraw their child from those lessons in part or in full. In this case, the request and refusal took place after the lesson had been delivered, and therefore disclosure cannot serve the public interest in material being shared in advance so that parents can make an informed decision on whether or not to withdraw their child in full or in part.

We accept that there is a particularly strong public interest in parents having access to teaching materials where a parent has raised concerns about safeguarding and inappropriate teaching materials at that School and where the outcome of a previous complaint had held that not all material had been sufficiently vetted.

We accept that there is a public interest in parents being able to make an effective complaint about a lesson.

We accept that there is a particularly strong public interest in parents having access to teaching materials where the organisation that delivered the teaching:

However, we find that those public interests are served by the availability of a ‘run through’ where parents can see the slides and are talked through the content. It does not, in our view, make a difference to the public interest balance that such a ‘run-through’ did not take place. It was available, both before and after the lesson, if a parent had requested it.

We accept, as the Secretary of State points out in her letter of 31 March 2023, that it will not be convenient for all parents to attend a viewing of the slides at school. Further we acknowledge that having copies of the materials to take home enables more detailed discussion with the child of the matters covered. Finally although we find that it would be possible to make a complaint about the content of a lesson after such a viewing, we accept that it is easier to take advice and to draft and pursue a complaint if you retain a copy of those slides. On that basis we accept that there is some residual public interest in disclosure of the slides which would not be served by the parents attending a meeting and being talked through the slides.

We accept that there is some value in the public in general knowing the content of sex education classes taught in schools, particularly in schools funded by public money. This is limited where the information consists of one set of slides on one particular topic.

We do not accept that this general public interest in disclosure is increased to a significant extent by the other factors relied on by Ms Gannon. The matters of concern in relation to the website and its links were publicly available at the time and therefore already open to public scrutiny, as were the ‘lesson plans’ criticised by the appellant.

We accept that there is some increased public interest in transparency of lesson materials of organisations such as SoSE because of the public debate and sensitivity in relation to questions of political impartiality and/or the risks of partisan teaching in relation to sex education. This is limited because the request relates to one lesson and because, having viewed the slides, the contribution to public understanding and illumination of that debate through publication of these slides would be limited.

Weighed against this public interest is the importance of upholding duties of confidence, which is an important factor in the balance. Looked at as a whole, and taking into account the factors set out above, we find that the public interest in maintaining confidences is not outweighed by the public interest in disclosure of this set of slides to the world.

For those reasons we find that the School was entitled to withhold the information under section 41 FOIA.

It is not disputed that the names of the individuals who taught the particular lesson are personal information.

On the basis of the screenshots of the SoSE website provided by both parties, it appears to us more likely than not that the names of both facilitators appeared on the SoSE website at the relevant time (22 January 2023). The matter is not entirely clear. Ms Padalia’s oral evidence in response to questions from the Judge was that the name of one of the facilitators was not on the website in ‘early 2022’ and that she was not sure if it had been put on the website later. Given that Ms Padalia’s evidence was not specific in relation to dates and was given ‘on the hoof’ approximately 16 months after an event that she would have no reason to recall, we place little weight on it in relation to whether or not the name was on the website on 22 January 2022.

It appears from the website screenshots that it was usual practice to place the details of current facilitators on the website, and that these particular facilitators’ details were on the website by March 2022. In those circumstances, we have concluded the matter on the balance of probabilities and find that the details of both facilitators were on the SoSE website at the relevant time.

It emerged during the course of the hearing that the School only held the names of the two individuals who had delivered the lesson to Ms Page’s daughter. There had been no other visits and no other lessons or presentations delivered in 2021-2022. It is not material to the outcome of the appeal, but Ms Gannon correctly pointed out that the response to part (6) should therefore have been ‘Not held’.

We do not accept that it is appropriate to identify the legitimate interest as simply ‘knowing who is teaching at the school’ or ‘knowing who is teaching her child at the school’ or ‘knowing who is teaching her child sex education’. That simply identifies the information that Ms Page is seeking. It does not identify why that information is sought. The question posed by the statute is not, ‘Is your interest in this information legitimate?’ It is not helpful or sufficient to simply state that a requestor has a legitimate interest in knowing the information sought. Otherwise the second stage becomes redundant: if the legitimate interest is ‘knowing the requested information’, then disclosure will always be reasonably necessary.

We must identify the legitimate interests pursued by Ms Page, for the purposes of which it might be necessary for the requested information to be disclosed.

We accept that there is a general legitimate interest in appropriate, properly qualified and safe individuals teaching sex education. Similarly, we accept that Ms Page has a legitimate interest in her daughter being taught sex education by appropriate, properly qualified and safe individuals.

We accept that Ms Page has a legitimate interest in being able to complain effectively if she has concerns about those teaching her children.

We accept that there is a legitimate interest in the public being aware of who is responsible for delivering sex education in publicly funded schools. This is supported by the Statutory Guidance which requires schools to publish a policy on the delivery of sex education to be made available on its website which includes expressly “who is responsible” for teaching sex education.

In relation to the general public interest in relation to transparency in relation to who is responsible for teaching sex education, we find that this was served by (a) public knowledge that SoSE were responsible for delivering the session in question and (b) the fact that the SoSE website at the relevant time contained details, including names and biographies, of SoSE facilitators. Nothing is added to the general public interest in transparency by knowing which particular facilitator taught this particular lesson. We do not accept that it is reasonably necessary to release the names of the individual facilitators who taught this particular lesson for the purposes of this general public interest.

In relation to Ms Page’s particular legitimate interests, we have to consider whether they could be served by less intrusive means than releasing the names of those individuals to the world. In relation to the legitimate aim of ensuring that appropriate, properly qualified and safe individuals are teaching sex education, we find that the statutory framework that has been established to regulate who works in schools meets that interest. The fact that SoSE’s safeguarding policy does not appear on its website does not, in itself, suggest to us that the usual policies will not have been followed.

In addition, the details of facilitators and their biographies appeared on SoSE’s website at the relevant time. The concerns that Ms Page had about the suitability of the facilitators arose from the information she found about those facilitators on the SoSE website. Parents and members of the public have access to those details on the website and can complain if they wish about their suitability as facilitators.

We do not accept that Ms Page is unable to make a complaint if she does not know the names of the individual facilitators. If she has concerns about the way in which the session was taught, she can raise these concerns and the name of the facilitator will be available to those determining the complaint. If she has concerns arising out of the appropriateness of the facilitators listed on the website she can raise those concerns.

For all those reasons, we do not accept that disclosure of the names of the facilitators who taught this individual session to the world is reasonably necessary for the purposes of the legitimate interests. Having reached those conclusions we do not need to consider any other issues and we conclude that the School was entitled to withhold the information under section 40 FOIA.

Based on the fact that the PHSE lead stated that the materials in question had not been produced, we are satisfied on the balance of probabilities that the information was not held. We do not accept that there was any need to carry out a search for materials that the School had been told by the responsible individual did not exist.

In the light of our conclusions above, we do not need to consider section 43 or section 21. The appeal is dismissed.