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The First-tier Tribunal’s analysis
The First-tier Tribunal’s analysis
The First-tier Tribunal held that “it is not necessary or proper to imply a statutory duty to provide parents with sufficient information so as to enable them to make a meaningful decision as to whether to action their right under s.405 of the EA 1996 to “wholly or partly” withdraw their child from sex education classes”. This was because “the purpose of the legislation can as well be achieved by schools acting properly to provide sufficient information to parents in accordance with the Statutory Guidance” (paragraph 137), and the Statutory Guidance meant that “the right to withdraw is not meaningless without a statutory duty” (paragraph 138).
With respect, I consider the First-tier Tribunal’s approach to be wrong in principle to the extent that it relied on the Statutory Guidance to construe section 405 EA 1996. I agree with Mr Moss, for the Appellant, that the guidance was not a permissible aid to construction. The Statutory Guidance did not exist when Parliament enacted section 405 and, even if it had then existed, could have been withdrawn at any time as a matter of ministerial discretion. Bennion, 5th edition, p.702 makes what I think must be the uncontentious point that “nothing that happens after an Act is passed can affect the actual legislative intention at the time it was enacted” (Bennion, 5th edition p.702). However, as I will now endeavour to explain, the Tribunal’s error of approach was not a material error.
- 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