[2025] UKUT 308 (AAC)

The First-tier Tribunal’s error is disclosed in paragraph 147 of its reasons. While the Tribunal was not required to take into account the private interests of requestors that do not accord with the public interest in general, it was required to take into account the public interest of parents as members of the public. The Tribunal failed to take into account that the public interest in parents seeing sex education materials must be given significant weight which follows from Parliament’s special treatment of parents regarding sex education for their children.

The First-tier Tribunal failed to recognise the ongoing public interest of parents after sex education has been provided (paragraph 153). The fact that, at the point at which the Appellant made her request for information, her daughter could not have been withdrawn from the SoSE Session (it had already taken place), did not mean that she ceased to have a legitimate interest in her daughter’s sex education.

The First-tier Tribunal further erred by taking into account SoSE’s purported commitment to show the Slides to the Appellant when the evidence disclosed that no offer was put to the Appellant, by either the school or SoSE. All that was communicated to the Appellant regarding SoSE’s position was a false accusation of harassment.

The First-tier Tribunal erred by failing to take into account, or give sufficient weight to, evidence that the so-called ‘run through’ of the Slides would not allow a parent to rely on the material displayed to make a complaint to the school or OFSTED, nor have meaningful discussions with their child.

In all the circumstances, the First-tier Tribunal wrongly concluded that the weight to be accorded to a commercial confidentiality interest outweighed the interests of parents in being able to know what is being taught in schools. Even if the Slides were confidential (not conceded), the public interest was clearly in favour of disclosure. An exceptional case is not required in order to override a duty of confidence that would otherwise exist (London Regional Transport v Mayor of London [2001] EWCA Civ 1491; [2003] EMLR 88). The recognised test is whether there is a public interest in disclosure which overrides the competing public interest in maintaining the duty of confidence. In this respect, there is a strong public interest in ensuring that public authorities are transparent, accountable and open to scrutiny. These considerations are of particular public importance in the context of children’s education given the need to safeguard children from inappropriate materials and the statutory obligations under sections 406 and 407 of EA 1996 to provide non-partisan teaching. A mechanism must exist for parents, and the public, to keep materials under review and holds providers of such materials to account. The Tribunal failed to afford sufficient weight to this consideration. The need for accountability and transparency is ‘compounded’ in the case of sex education given the right of parents to withdraw children “in part” from such education.

The First-tier Tribunal accepted that there was a very strong public interest in curriculum and lesson materials on sex education being shared with parents in advance so that they may make an informed decision as to whether to withdraw their children, in whole or in part (paragraph 153). However, it went on to hold that, as the Session had already taken place, that public interest no longer applied. In this respect, the Tribunal failed to appreciate that SoSE presumably intended to present the Session at other schools, and that post-Session receipt of the Materials would enable parents thoroughly to discuss the subject matter with the children. These factors meant that the public interest remained ‘live’.

The First-tier Tribunal also accepted a “particularly strong public interest in parents having access to teaching materials” (paragraph 156). However, it went on erroneously to conclude that the public interest would be served by the availability of a ‘run through’ of the Slides despite having acknowledged that this would not be convenient for all parents, and that taking copies of the Slides home would enable more detailed parent/child discussions and make it easier to make a complaint (paragraph 158). Given the Tribunal’s acceptance of some ‘residual public interest’ not served by a run-through (paragraph 158), it was surprising that it went on to rule against disclosure, a ruling which further undermined its conclusion that the balance of public interests favoured preserving confidentiality.

The First-tier Tribunal failed to take into account that the Appellant’s formal complaint about the School was, in part successful, and led to changes in practice. This undermined the Tribunal’s public interest analysis.