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Evidence about the potential determent for SoSE were the Slides to be disclosed
Evidence about the potential determent for SoSE were the Slides to be disclosed
An email sent on 2 March 2022 (sender and recipient redacted but, presumably, from SoSE to the School) with the subject line “Re: Internal review – Hatcham College FOI” read as follows:
“Yes, this information is commercially sensitive. Our income is reliant on delivering this lesson plan, and our commercial position is reliant on the confidentiality of the materials that we create.
Furthermore, it is unclear why the school continues to hold this information, since it was provided exceptionally for the sole purpose of alleviating the parent’s concerns and was provided on the agreement that the information would be deleted immediately.
It has been several months since we provided this information, [redacted] a meeting has even been had with the parent she was shown the slides. Therefore, as per the agreement, the lesson plan provided should not still be held by the school, and therefore should not be subject to an FOI. If the school discloses the information this would constitute a breach of confidence, since the information was obtained from us in confidence and on the condition of being immediately deleted and therefore should not still be held by the school. We understand that this constitutes an exemption to FOI under Section 41.
We are a charity and so not subject to the same FOI rules as a school. If the FOI request was made to us directly we would not be under the same obligation to disclose. If the school discloses our intellectual property as a result of failing to delete them as per the agreement then we are in a position where commercially sensitive information has been disclosed that we would not have been obligated to disclose.
In response to your questions:
• We do not want our information to be shared with the parent. We are confident that both the school and our charity have made clear to the parent the content of the workshop. As far as we are aware, the parent has in fact already visited the school and been shown the slides by the Principle [sic] - so we do not believe the parent's request to be in good faith. It is unclear how providing the resource directly to the parent could add to what has already been established. The levels of disruption, irritation, distress and commercial harm are therefore disproportionate given the unclear benefits of the FOI. We therefore believe it would also be possible to refuse the request as vexatious.
• No, the lesson plan is not in the public domain.
• This information is commercially sensitive, since our income is reliant on delivering this lesson plan, and our commercial position is reliant on the confidentiality of the materials that we create.
Finally, given the significant risk that this situation poses to our charity we would appreciate liaising with legal team directly regarding this. As explained, given that this our confidential information and our intellectual property covered by copyright, it is unclear why the school is in a position to disclose of the information which should no longer be held by the school.”
The Appellant’s second witness statement said:
“18…I think it unlikely that showing the contents of one lesson plan to the public at large would be fatal to the charity, especially if the materials were of good quality and suitably protected by the charity’s enforcement of its own copyright for commercial reasons, which really should be a normal part of their occupation in my view, if they want to teach in schools.”
- Heading
- Introduction
- Secretary of State for Education’s involvement in these proceedings
- Factual background
- Appellant’s interaction with the School / Trust before she made her FOIA request
- Informing Parents
- Discussions between the School / Trust and SoSE about access to the Slides
- Appellant’s concerns about, and interaction with, SoSE
- Evidence about the potential determent for SoSE were the Slides to be disclosed
- The outcome of the Appellant’s complaint about the School
- The School of Sexuality Education
- Failure to be transparent about lessons taught to children
- The Appellant’s FOIA request
- identities of SoSE staff were withheld under section 40 FOIA (personal information)
- The Information Commissioner’s decision
- The Commissioner’s decision notice (ref. IC-171936-C9H8)
- was not trivial and had the necessary quality of confidence
- any reasonable person, standing in the shoes of the Trust, should have realised attracted an obligation of confidence
- First-tier Tribunal’s decision
- The Appellant’s arguments
- the Commissioner erred in holding that the Slides could be withheld in reliance upon s.41 of the FOIA the Commissioner erred in holding that the identities of SoSE’s facilitators were exempt as personal data; and
- Whether section 405 of EA 1996 carries an implied obligation to provide parents with sex education teaching materials: Ground 1
- The law of confidence
- Disclosing identities of SoSE facilitators
- Observations on the Appellant’s case before the First-tier Tribunal
- The First-tier Tribunal’s decision
- Section 41 FOIA / law of confidence: disclosure of the Slides
- Section 40 FOIA: disclosure of identities of SoSE’s facilitators
- the legitimate interest was not simply ‘knowing who is teaching her child sex education’ (paragraph 168)
- in relation to the Appellant’s particular legitimate interests
- Any person making a request for information to a public authority is entitled—
- if that is the case, to have that information communicated to him.”
- Information accessible by other means
- Personal information
- Information is exempt information if—
- “First, the information itself, in the words of Lord Greene, M.R. in [ Saltman Engineering Co. Ltd. v. Campbell Engineering Co. Ltd. (1948) 65 R.P.C. 203] on page 215, must “have the necessary quality
- “Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it”
- Commissioner’s guidance about section 41 of FOIA
- Education
- sex education comprised in the National Curriculum
- Statutory Guidance
- “typical policies are likely to include sections covering…
- subjects. Schools should ensure that parents know what will be taught and when, and
- of Relationships Education and RSE. Good communication and opportunities for parents
- sex education delivered as part of statutory RSE. Before granting any such request it
- or visiting organisation’s credentials. Schools should also ensure that the teaching
- the second conditions the way in which the State provides education
- Copyright
- Grounds of appeal and arguments
- Ground 1 – whether section 405 EA 1996 imposes an implied obligations to provide information
- Appellant
- The Commissioner
- Ground 2 – Tribunal’s assessment of the law of confidence, and application of section 41 of FOIA
- Appellant: principles of the law of confidentiality
- disclosure of the information in question would constitute a breach of confidence, contrary to the principles expounded in Coco v Clark ; and
- UKUT 313 (AAC) at [38]. For this purpose, the test is one of proportionality: HRH The Prince of Wales v Associated Newspapers Limited [2008] Ch 57 at [67] and [69])
- the information must be inaccessible (Arnold LJ in The Racing Partnership Ltd & Ors v Sports Information Services Ltd [2020] EWCA Civ 1300 , [2021] Ch. 233 at [48]), and “the claimant…must demonstrate
- the information must be worthy of confidentiality by virtue of a quality central to it, which is of particular relevance where component parts, but not the information itself, may be in the public dom
- the industry/sphere in which the parties operate may be relevant because “whether information should be treated as confidential will be judged in the light of the usage and practices of the particular
- Appellant: First-tier Tribunal’s application of the law
- SoSE published a book in September 2021 Sex Ed: An Inclusive Teenage Guide to Sex and Relationships . The book was in the public domain at the date of the Appellant’s FOIA request and contained a chap
- The Commissioner
- assuming the Appellant is correct that the Slides drew on a variety of sources, and included information replicated in the public domain, it does not follow that the Slides did not merit protection un
- the argument that the First-tier Tribunal (and previously the Commissioner) confused confidentiality and copyright is misplaced. The law of confidence often looks to the originality of information in
- SoSE
- Appellant
- Commissioner
- SoSE
- Appellant
- Commissioner
- Ground 5
- Appellant
- Commissioner
- Ground 6
- Appellant
- failed to take into account the primacy of parental rights to determine what education their child receives
- expectations of privacy) against the public interest in disclosure (see AB v A Chief Constable [2014] EWHC 1965 (QB) at [75]). A question to be asked is whether an individual had a reasonable expectat
- is the data controller, or third parties to whom data is disclosed, pursuing a legitimate interest?
- is the processing unwarranted because the legitimate interests are outweighed by the rights and freedoms of the data subject? The Commissioner submits that this is a balancing exercise to be applied s
- SoSE
- Proceedings before the Upper Tribunal
- Additional evidence
- Hearing
- The Upper Tribunal’s analysis
- Ground 1
- The First-tier Tribunal’s analysis
- Section 405 EA 1996 : Upper Tribunal’s analysis
- Ground 2
- The Appellant’s case on the law of confidence before the First-tier Tribunal
- Whether disclosure would constitute an actionable breach of confidence: matters of fact and law
- Determination of Ground 2: analysis
- the Appellant criticises the Tribunal for failing properly to consider whether the first condition in Coco v Clark was met (information must have the necessary quality of confidence), and simply assum
- the Appellant submits that the Tribunal failed to appreciate that disclosure of the information within the Slides at the Session destroyed any confidentiality they might previously have possessed. The
- Ground 2: conclusion
- Ground 3
- Ground 4
- Ground 5
- Ground 6
- the balance of interests fell plainly in favour of disclosing identities of the SoSE facilitators (notice of appeal)
- Conclusions