Clare Page v The Information Commissioner & Anor

A parental right to withdraw a child from relevant sex education carries an implied obligation to provide sufficient information about proposed teaching to enable an informed decision. It does not necessarily require disclosure of every lesson plan or teaching material. The obligation does not ordinarily assist a request made after the lesson has taken place.

For Freedom of Information Act 2000 purposes, teaching materials may remain subject to an actionable obligation of confidence despite limited dissemination to pupils. An Upper Tribunal appeal on a point of law cannot be used to introduce a substantially new factual or legal case, or to reargue the weight given by the First-tier Tribunal to relevant considerations.

The appellant requested from an academy trust the slides and other materials used by the School of Sexuality Education in a consent session attended by her daughter, and the identities of the facilitators. The request was made after the session.

The trust withheld the slides under sections 41 and 43 of the Freedom of Information Act 2000, and the identities under section 40(2). The Information Commissioner upheld the relevant exemptions. The First-tier Tribunal dismissed the appellant’s appeal, finding that the materials were confidential and that disclosure of the facilitators’ identities was not reasonably necessary.

The central issues were whether section 405 of the Education Act 1996 required disclosure of the materials, whether the First-tier Tribunal erred in its application of the law of confidence, and whether it erred in refusing disclosure of the facilitators’ identities.

1. Appeal dismissed. The First-tier Tribunal had not made an error of law. Permission to appeal was granted on the six grounds, except insofar as they merely disputed findings of fact.
2. Section 405 of the Education Act 1996 must be construed as including an implied obligation on a maintained school, or the entity controlling it, to provide a parent who wants it with sufficient information about proposed relevant sex education to make a properly informed withdrawal decision. The obligation arises because the statutory right to withdraw, including partly, would otherwise be ineffective for parents whose decision depends on the content of the proposed teaching.
3. The obligation is fact-sensitive. It does not confer an automatic right to all teaching materials, lesson plans or slides. The necessary information depends on the particular parent and child. The statutory guidance cannot be used to construe section 405, although compliance with it may provide a means of satisfying the implied obligation.
4. The appellant’s request was made after the session. It was therefore not made to decide whether to withdraw her daughter from proposed relevant sex education. On the evidence, the school had informed parents of the provider, subject and withdrawal right and invited further discussion. The First-tier Tribunal therefore made no material error in rejecting the section 405 argument.
5. The Upper Tribunal could not correct shortcomings in the appellant’s substantially undeveloped case before the First-tier Tribunal concerning confidentiality. The First-tier Tribunal was entitled to interpret the later email as importing an obligation of confidence, and its findings that the slides were a unique, non-public product and that disclosure could cause commercial detriment were not legally irrational. Limited dissemination does not necessarily destroy confidentiality.
6. The First-tier Tribunal also properly recognised the public interests relating to parental awareness, accountability and sex education, but was entitled to balance them against maintaining confidentiality and to take account of more targeted alternatives. The Upper Tribunal could not reweigh those matters absent perversity.
7. As to the facilitators’ identities, the statutory guidance did not require the school’s policy to name every person delivering sex education. It was open to the First-tier Tribunal to find that the appellant’s legitimate interests could be met by the statutory safeguarding framework and publicly available information about the provider and its facilitators. The section 40(2) exemption was therefore available.

• Upper Tribunal (Administrative Appeals Chamber): The appeal from the First-tier Tribunal was dismissed under section 12(1) of the Tribunals, Courts and Enforcement Act 2007.
• First-tier Tribunal (General Regulatory Chamber): The appellant’s appeal against the Information Commissioner’s decision notice was dismissed on 6 June 2023.
• Information Commissioner: Sections 40(2) and 41(1) of the Freedom of Information Act 2000 were held to be engaged.