[2025] UKUT 308 (AAC)

The Appellant’s case before the First-tier Tribunal was that (a) the School were required, by virtue of an obligation implied by section 405 EA 1996, to provide her with the Slides; (b) that requirement, being one imposed by Parliament, could not be defeated by any duty of confidence. I am not entirely certain whether (b) argued that a common law duty of confidence would be displaced, to the extent that it was incompatible with the asserted implied obligation under section 405, or that it meant that the School would undoubtedly mount a successful public interest defence to an action for breach of confidence. However, that does not matter for present purposes. As I understand the Commissioner’s case, he accepts that, if the Appellant was entitled to the Slides by virtue of an implied obligation under section 405, the information within the Slides could not be exempt information under section 41 FOIA.

An important contextual feature of this case is the timeline of the Appellant’s request for information. It was made after the Appellant’s daughter had attended the Session. The issue for the Upper Tribunal, therefore, is whether the First-tier Tribunal made a mistake of law in holding that section 405 EA 1996 did not require a parent to be provided with teaching materials for a sex education lesson that had already taken place and in respect of which it was, of course, too late for a parent to exercise the right of withdrawal under section 405.