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or visiting organisation’s credentials. Schools should also ensure that the teaching
or visiting organisation’s credentials. Schools should also ensure that the teaching
delivered by the visitor fits with their planned programme and their published policy. It is
important that schools discuss the detail of how the visitor will deliver their sessions and
ensure that the content is age-appropriate and accessible for the pupils. Schools should
ask to see the materials visitors will use as well as a lesson plan in advance, so that they
can ensure it meets the full range of pupils’ needs…” (paragraph 52).
Other material
On 22 November 2022, Amanda Spielman, Chief Inspector of OFSTED, gave evidence to the House of Commons Education Committee. The Chief Inspector said:
“…I do think that in these difficult and contested areas to withhold material from parents is worrying. Commercial confidentiality may have stood up to the Information Commissioner’s legal test. Nevertheless, as a matter of principle, I would expect every school to be comfortable showing its parents what it is teaching.” (HC58)
On 9 February 2023, Baroness Barran, Parliamentary Under-Secretary of State for the School System at the Department for Education, gave the following written answer in the House of Lords:
“Schools are responsible for what is taught in Relationship, Health and Sex Education (RHSE) lessons, including anything taught by external providers. Schools should agree reasonable requests from parents to view curriculum materials. We would expect schools to avoid entering into any agreement that seeks to prevent them from ensuring parents can be made properly aware of the materials that are being used to teach their children. The department will soon be writing to schools to clarify this…”. (UIN HL5022)
On 31 March 2023, the Secretary of State for Education, The Rt Hon Gillian Keegan MP, wrote to “Headteachers and School Leaders” in England:
“…I have become aware of an increasing number of cases where parents have had concerns about the materials used to teach their children. Some have been prevented from viewing those curriculum materials because their children’s schools believed they were unable to do so for commercial reasons.
The Department is clear that parents should be able to view all curriculum materials. This includes cases where an external agency advises schools that their materials cannot be shared due to restrictions in commercial law, or a school’s contract with the provider prohibits sharing materials beyond the classroom. Parents are not able to veto curriculum content, but it is reasonable for them to ask to see material if it has not already been shared, especially in relation to sensitive topics.
…the Department would expect schools to avoid entering into any agreement with an external agency that seeks to prevent them from ensuring parents are properly aware of the materials that are being used to teach their children. Schools should not agree to contractual restrictions on showing parents the content used in RSHE teaching or agree to this being subject to a third party’s right of refusal. There is a strong public interest in parents being able to see the full content of RSHE teaching. Schools must ensure that their statutory duty to have regard to the RSHE guidance is communicated to third party providers, together with the expectation that the default position must always be that the content is shared with parents.
We know that some schools will have already entered into contracts with providers that prevent them from sharing materials with parents. Even where this is the case, schools can show resources to parents in person on the school premises without infringing copyright in the resource, so this should not be an obstacle to sharing materials with parents who wish to see them. Having to come to the school is, however, likely to be inconvenient for parents and schools, so should not be a long term arrangement. We would expect schools to take urgent steps to either renegotiate these contracts or find an alternative provider at a suitable time, so that materials can be sent out or made available online to parents.
…
Curriculum materials may be copyright works owned by those external agencies, and we appreciate that schools will be concerned to avoid infringing an external agency’s intellectual property rights. This is why we hope it is helpful to clarify that we expect schools to adopt a transparent approach, and not work with providers whose copyright issues prevent this…”.
Human Rights Act 1998 – European Convention on Human Rights
Article 2 of the First Protocol to the European Convention on Human Rights provides for two requirements:
the first is negative in nature namely that “no person shall be denied the right to education”;
- 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