[2025] UKUT 308 (AAC)

The First-tier Tribunal failed properly to consider whether the information was confidential at all. It did not address the first condition in Coco v Clark, and simply assumed that the information was confidential. The Tribunal’s assumption derived from an email in which SoSE asked the School not to share the slides further, and delete once used. Paragraph 140 of the Tribunal’s reasons betrays a misunderstanding of the law of confidence which, on its own, is sufficient for Ground 2 to succeed. The Tribunal found that “the slides were provided to the School in circumstances importing an obligation of confidence” (emphasis added). The slides themselves were not the issue. For the purposes of the law of confidence, what mattered was the information within the slides.

The First-tier Tribunal found, in paragraph 140, that SoSE’s email included wording “akin to an express statement that the information is being provided in confidence” and “any reasonable person” would have so read it. This finding is untenable. What SoSE’s email said was “could I request” that the Slides not be shared with the Appellant. That could not properly be construed as an express statement that the information was provided in confidence. The notional reasonable person, referred to in paragraph 140, should have been framed as a reasonable person who was aware of the statutory educational context. A properly defined reasonable person would not have read the email in accordance with paragraph 140.

Before analysing the circumstances in which the information was provided to the School, the First-tier Tribunal should have asked whether it possessed the necessary quality of confidence and considered the first disclosure (during the Session). Had the first condition in Coco v Clark been considered, the Tribunal would have been bound to find that the information did not have the necessary quality of confidence because (a) there was nothing in the information that was confidential, and (b) if the information was confidential (not conceded), SoSE’s own actions destroyed any confidentiality because the Session undoubtedly put the information in the public domain. The facts admit of only one conclusion – no equitable duty of confidence applied to the pupils who attended the Session and, as such, the information imparted was made public (to the extent that it had not already been made public by SoSE) so that, thereafter, no confidentiality could exist in the Slides.

Regarding the inherent confidentiality of the Slides / information within them, the First-tier Tribunal itself acknowledged that they were “not necessarily particularly sensitive”, drew on a variety of sources and contained information some of which could be found elsewhere in the public domain (paragraphs 16 and 17). The Appellant submits that slides for a sex education class on consent, taken from materials already in the public domain, are not the sort of information that is protected by the law of confidence (something is not made confidential ‘just because someone says it is’: see Mosley v News Group Newspapers Ltd [2008] EWHC 687 (QB)). Mr Moss, for the Appellant, rightly points out that the Appellant’s argument that the Slides did not contain inherently confidential information is hampered by the fact that her legal representatives have not been able to see them but, nevertheless, ‘one struggles to see’ what could be in Slides prepared for a lesson on consent that was not already in the public domain.

Paragraph 140 of the First-tier Tribunal’s reasons describes the Slides as a ‘unique product’, not ‘public knowledge’ and ‘not publicly available’. This is a further indication that the Tribunal failed properly to distinguish between the Slides and the information within them. What, asks the Appellant, could possibly be confidential about information that conveys ideas about consent in the sexual arena?

The First-tier Tribunal failed to take into account that the Appellant’s request for information, insofar as it related to lesson plans and other material generated by the School, was complied with and the information provided.

The Appellant concedes that, in law, a collation of public information may become confidential by, as Megarry J said in Coco v Clark, “the application of the skill and ingenuity of the human brain”. However, it is ‘hard to imagine’ what that might be in the case of slides prepared for a lesson on consent and sex education and SoSE fail to establish the requirement for ‘more’ identified by Hirst J in Fraser as necessary for the inherent quality of confidentiality. Indeed, the Slides were prepared for the very purpose of being shown in public to pupils and they were not bespoke. Mr Moss argues that, if an action for breach of confidence were brought, SoSE would be bound to face real difficulty in satisfying the requirement identified in Fraser that “unquestionably…the idea must have some significant element of originality not already in the realm of public knowledge” (page 66C).

The Commissioner criticises the Appellant for the ‘entirely unevidenced’ assertion that the Materials were created for widespread dissemination, but this overlooks that the Appellant is not required to show that the Materials were not confidential; it is for SoSE to show that they were. In any event, SoSE disseminates its resources at a wide number of schools (“we…deliver these same lessons repeatedly”) and it gave evidence before the First-tier Tribunal that its normal practice is to offer to run through sessions with parents which, of itself, destroys any claim to confidentiality.

The very purpose of the Slides was to educate, and thereby equip the recipients of education (pupils) with tools to use and pass on. If the Slides were confidential, pupils who did this would breach confidentiality. The flaws in the Respondents’ cases are heightened when one bears in mind that the Session was about consent, and the giving of consent is not a solitary activity. No reasonable recipient (15-year-old pupil) could possibly have believed that they / their consciences were bound to refrain from using or disseminating the information to others.

There could not have been anything about the information within the Slides that merited protection by the law of confidence, and it is of note that, before asserting that disclosure of the Slides would breach a confidence, SoSE initially relied on ‘copyright’ and then ‘commercial interests’. This smacks of using confidentiality as a last-ditch attempt to hide the slides from genuine public scrutiny. Further, a reasonable person would clearly not regard as confidential a slideshow designed for presentation to the public. Teachings materials are designed for public dissemination. These were not bespoke materials and any suggestion that they were designed to be shown to the School, and no other party, would, in the words of the Appellant’s skeleton argument, “be anathema to the safeguarding principles of teachings materials being transparent”. SoSE’s argument that the Slides were a commercial product, not learning materials, flies in the face of reality.

The Appellant asserts that SoSE has “habitually shared information and its resources in the public domain” so that it may reasonably be inferred that the information in the Slides had, before the Session, already been put in the public domain. In particular:

SoSE has posted photographs of materials from its workshops on social media, including photographs of its slides;

SoSE shares information and resources on an on-line blog;