The Upper Tribunal has dismissed a mother’s appeal against a decision by the First-tier Tribunal that she was not entitled, under section 405 of the Education Act 1996, to be provided with sex education teaching materials relating to a lesson after it had taken place.
In Page v The Information Commissioner & School of Sexuality Education [2025], Upper Tribunal Judge Mitchell concluded that the First-tier Tribunal did not err in law in deciding that disclosure of sex education teaching materials, prepared by an organisation commissioned to provide sex education at a maintained school, would constitute an “actionable breach of confidence”.
The appeal was brought by Clare Page, a mother who wished to obtain teaching materials used by a charity (School of Sexuality Education - SoSE) for a sex education session at her daughter’s school, as well as the names of the individuals who delivered the session.
The mother’s request was refused by the school, including on the basis that disclosing the materials would constitute a breach of confidence.
The appellant said in a witness statement: “I called the SoSE on 13 October 2021 because the school had explained they would not be able to show me the resources used to teach my daughter, because of the SoSE’s position not to grant copyright to the school. They seemed to be saying effectively that the matter was out of their hands. I found this surprising and so wanted to understand SoSE’s decision and ask them to reconsider. I did not think it was unreasonable to call an organisation that was paid to deliver services to my daughter’s school, and which taught my daughter, and ask them what they had taught.”
SoSE claimed that due to it being a charity, it is not subject to the same Freedom of Information (FOI) rules as a school.
It said: “We do not want our information to be shared with the parent. We are confident that both the school and our charity have made clear to the parent the content of the workshop. As far as we are aware, the parent has in fact already visited the school and been shown the slides by the Principle [sic] - so we do not believe the parent's request to be in good faith. It is unclear how providing the resource directly to the parent could add to what has already been established. The levels of disruption, irritation, distress and commercial harm are therefore disproportionate given the unclear benefits of the FOI.”
The appellant complained to the Information Commissioner.
The Commissioner concluded that:
- Disclosing the information would prejudice SoSE’s commercial interests. It would limit SoSE’s ability to exploit the information for commercial gain.
- Parents have rights to decide what is and is not taught to their children and that those rights cannot meaningfully be exercised without knowledge of the subject matter of lessons. Nevertheless, unrestricted disclosure would not be a proportionate or necessary means of achieving any legitimate interest in keeping parents informed.
- In relation to the request for information in the form of identities of SoSE facilitators at the session, this was a request for personal information, and the Trust were entitled to withhold the information under section 40(2) FOIA.
The appellant subsequently appealed against the Commissioner’s decision notice to the First-tier Tribunal.
The appellant advanced three grounds of appeal:
- 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
- the Commissioner erred in accepting that no further information was held in relation to other parts of the appellant’s request for information. The Tribunal’s determination of this ground of appeal is not challenged.
The appellant disputed the Commissioner’s argument that there was “limited public interest” in disclosure.
She argued that the Commissioner failed to take into account: the school’s failure to vet the material in advance, ‘concerning’ material on SoSE’s website, her daughter’s report that matters unrelated to consent were taught at the session, that schools should not, as a matter of general principle, be required by third parties to keep curriculum material secret, and the public interest in knowing how public funds are expended on sex education.
She argued it was necessary for her to know the facilitator’s’ identities to enable her to research them and potentially complain to the school about their suitability.
The First-tier Tribunal held that section 41 FOIA applied to the appellant’s request for the slides / information within them so that the information was therefore absolutely exempt from disclosure under FOIA.
In dismissing this aspect of the appellant’s appeal, the Tribunal expressed its conclusion as follows:
“Looked at as a whole, and taking into account the factors set out above, we find that the public interest in maintaining confidences is not outweighed by the public interest in disclosure of this set of slides to the world.”
Considering the issue of the identities of SoSE’s facilitators, the First-tier Tribunal’s overall conclusion was that “disclosure of the names of the facilitators who taught this individual session to the world is [not] reasonably necessary for the purposes of the legitimate interests”.
This meant that the information was exempt from disclosure under FOIA. The Tribunal dismissed the appellant’s appeal against the Commissioner’s decision that the school were entitled to rely on section 40 FOIA.
The appellant relied the following grounds against the First Tier Tribunal’s decision:
- That the First-tier Tribunal erred in law by failing to recognise the existence and extent of an implied obligation to provide parents with information under section 405 EA 1996.
- That the First-tier Tribunal misdirected itself in law because it misunderstood the law of confidence. Had the law of confidence been properly applied, the Tribunal could not have found the information to be confidential. The Tribunal ‘failed at every step’ of its legal analysis.
- That the First-tier Tribunal took into account irrelevant considerations in holding that disclosure of the slides would cause detriment to SoSE.
- That the First-tier Tribunal’s analysis of the public interest defence to an action for breach of confidence failed to take into account the public interest of parents.
- In holding that the circumstances in which the slides were provided to the school imported an obligation of confidence, the First-tier Tribunal failed to take into account relevant considerations.
- That the First-tier Tribunal erred in law in finding that it was not reasonably necessary for parents to know the identities of the SoSE facilitators at the session. The Tribunal took irrelevant considerations into account and misdirected itself in law.
The Upper Tribunal rejected all six grounds of appeal brought by the claimant, concluding that section 405 of the Education 1996 – which allows parents to withdraw their children from sex education in state schools – contains an “implied obligation” to provide information about what will be taught, but does not require a school to provide all materials that will be used.
Upper Tribunal Judge Mitchell said: “It is not disputed that a parent requires ‘sufficient information’ in order meaningfully to exercise the right of withdrawal under section 405 EA 1996. The Commissioner relies, at least in part, on a maintained school’s separate statutory obligations to consult parents on their sex education policy statements and provide access to such statements, to supply this sufficient information.
“However, children move in and out of schools so that, at a given time, there will always be some parents who have not been consulted. In any event, all that is required by section 80B(1) EA 2002 and section 404(1)(a) EA 1996 is a written statement of a school’s 'policy with regard to the provision' of sex education, which is a broadly framed duty capable of being satisfied in a multitude of ways and with varying degrees of precision. I acknowledge that statements must also include a 'statement of the effect' of the parental right under section 405 (see section 404(1A) EA 1996 and section 80B(2) EA 2002). However, compliance with that obligation would not necessarily entail the provision of information about the content of sex education.”
She continued: “It is true that the Statutory Guidance provides that a school’s sex education policy should identify 'who is responsible' for teaching sex education. I do not, however, read this as a requirement to name each and every person, member of school staff or otherwise, who delivers sex education at a school. I read the guidance as imposing an expectation that a sex education policy will identify the member/s of school staff with overall responsibility for the teaching of sex education.
“Had the intention been to name each person who delivers sex education, the Statutory Guidance could have said so in terms. Moreover, such a requirement would be almost impossible to implement since some identities would not be known when a policy was made. Teaching staff appointed after a policy was made could not be named nor supply teachers, and the same difficulties would arise if an attempt were made to name staff of external organisations that might be commissioned to provide sex education. The First-tier Tribunal could not have erred in law by failing to take into account a non-existent requirement. It follows that the Tribunal did not err in law by failing to accept that anyone teaching sex education must reasonably expect to have their identity disclosed to parents.”
She concluded: “None of the appellants’ grounds of appeal are made out and this appeal is therefore dismissed. I should point out that I have not decided that parents have no right to see relevant sex education teaching materials. All I have decided is that the First-tier Tribunal, in the light of the circumstances of the case before it and, in particular, the arguments put to it, did not err in law in deciding that the Appellant was not entitled under FOIA to be provided with teaching materials for relevant sex education that, when the information was sought, had already taken place.”
Lottie Winson
