[2025] UKUT 308 (AAC)

In finding that disclosure of the Slides would cause detriment to SoSE, the First-tier Tribunal took into account that other third party providers were not freely disclosing materials, copyright enforcement is slow and expensive, and prospective customers (other schools) would withdraw from using SoSE’s services after seeing the Slides. All were irrelevant considerations.

SoSE provided no evidence about industry norms regarding disclosure of teaching materials. SoSE spoke only of its own practices. There was no proper basis for the Tribunal’s finding that it was the ‘norm’ for third party providers to act contrary to the Statutory Guidance.

The First-tier Tribunal drew an unsupportable inference from the Secretary of State for Education’s 31 March 2023 letter that “providers were not freely disclosing their materials”. The Secretary of State’s reference to ‘some schools’ having entered into contracts that prevented them sharing materials with parents could not reasonably be construed to mean that third party providers normally or routinely failed to comply with the Statutory Guidance. In any event, even if there was such routine failure, so that disclosure of SSE’s materials would impair competitive advantage, that should not have been effectively supported by the Tribunal through it upholding a FOIA 2000 refusal.

In relation to copyright and asserted difficulties in enforcement, the Appellant relies on her Ground 2 arguments. The Appellant also argues that, intrinsically, every response to a FOIA request involves an infringement of copyright but section 50 of the Copyright, Designs and Patents Act 1988 provides a defence to infringements occasioned by FOIA, as acts done under statutory authority. In addition, release of information under FOIA does not extinguish underlying copyright so that SoSE would retain the right to restrain further replication of the Slides, including by its competitors. In fact, the availability of copyright should have been taken into account by the First-tier Tribunal as a factor lessening the detriment to SoSE occasioned by disclosure.