![[2025] UKUT 308 (AAC)](https://backend.juristeca.com/files/emisores/logo_3a2BKne.png){kind=logo}
Informing Parents
Informing Parents
The Hatcham RSE Policy is clear that parents should be properly informed about RSE teaching - this is important so they can assess their right to withdraw. The school advertised the lesson for the Drop Down Day as being about ‘Consent’. They did not refer to training about ‘heteronormativity’, nor that the charity conducting the lesson advocates for the partisan opinion of ‘sex positivity’, amongst other views. This misinformed the parents about the nature of the lesson and the provider. Whilst the school is tasked with integrating LGBT perspectives within the curriculum, the views given about heteronormativity were not related to consent and hence represented a lack of transparency and honesty about the training given.
…4. Lack of Transparency
On requesting to see what my daughter was taught about heteronormativity, [Vice Principal] and [Principal] at first repeatedly refused to provide me that information and when they did agree to at least describe the lesson plan, they delivered a false account - writing a short list that omitted the subject of heteronormativity, despite my having specifically asked about it…
…7. Poor judgement by [Principal]
… I suggest it should automatically concern the school if an external provider refuses to share lesson plans. The school should not hide lesson plans from parents at anyone’s request and if this charity is not transparent they should not be used again…
…RESOLUTIONS I SEEK
The School Should Provide the SoSE Lesson Plan for the Drop Down Day on Consent…and they should make arrangements that no external provider is ever in a position to hide material shown to children, from their parents. The school should apologise for creating (or finding themselves) in this situation and for being influenced by this charity into failing to be transparent with a parent.
I gratefully acknowledge [Trust’s CEO]’s preparedness to at least let me view the lesson plan in our meeting and appreciate that she intends to secure a copy for me. I await receiving it….”.
On 12 November 2021, the Trust’s CEO emailed the Appellant as follows:
“…I have therefore completed enquiries rather than a thorough investigation and have focused on the areas we agreed when we met. These were:
1. Your request to have a copy of the PowerPoint used by the School of Sexuality in September…
I have spoken with the CEO at the School of Sexuality and she is unwilling to give permission for their PowerPoint to be shared. I have pasted below her response and the reasons for their decision. They are aware that I have showed you the slides. If you wish to have ownership of the presentation, you should contact them directly. It is not unreasonable, or unusual, for an organisation – particularly a Charity – to have this stipulation…
We would really prefer that you do not share our slides with the parent. You are welcome to say that 'School of Sexuality Education says that it does not share its resources including slides for copyright reasons'. (These slides are our intellectual property so such a procedure is completely normal and reasonable.)
We have been happy to share the slides with Hatcham College but hope that this is just for the purposes of clarifying what was covered - though presumably the staff who attended the session can also provide this information and comment on whether anything concerning was said - and we would request that the slides are then deleted and not shared more widely.
…”.
The Appellant made her formal request for information under FOIA on 7 December 2021 (see paragraph 45 below).
An email from the Appellant to the School on 28 January 2022 stated as follows:
“the SoSE have chosen to make the material freely available to all the pupils - none of whom have signed non-disclosure agreements and who are free to communicate the details to anyone they like.”
- 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