Preamble
This is about an FOI tribunal case which has prompted a good deal of controversy and media comment from people who are concerned, in various different ways, about its ramifications. I do not address these wider points here. My aim is simply to summarise clearly the underlying issues that directly relate to freedom of information law and procedure.
Background
The case involves an FOI request made by Clare Page in December 2021 to Hatcham College, a secondary school in New Cross, south London.
In September 2021 Page’s daughter had attended a relationships and sex education lesson at the school, which was delivered by an external provider, the School of Sexuality Education (SSE). Afterwards, Page had concerns about the content of the lesson, which she raised with Hatcham College. During a meeting at the school she saw some of the slides used in the session, which the school had obtained from SSE for this purpose. Page then submitted an FOI request for more information about the lesson, other lessons on relationships and sex, and the school’s involvement with SSE.
The school is part of an academy trust, Haberdashers’ Aske’s Federation Trust, which supplied some of the material requested but withheld other material. Page complained to the Information Commissioner’s Office, who backed the trust’s refusal in a decision issued in September 2022.
Page then appealed against the ICO’s decision to the First-tier Tribunal, which has just heard the case, finishing today. The ICO submitted written arguments but declined to take part in the oral hearing (as is not uncommon). Hatcham College and the academy trust did not participate in the tribunal proceedings. The School of Sexuality Education was represented, supporting the position of refusal to provide the information to Page.
I listened in to the submissions made to the tribunal today. There is also an account of the hearing in the live tweets at this site.
The judge Sophie Buckley said that the tribunal’s judgment would be issued within four weeks of the completion of today’s hearing.
The issues
The issues to be determined by the tribunal are:
1. Would disclosure of the presentation slides used in the lesson be an ‘actionable breach of confidence’? If so, then the information can be withheld under section 41 of the FOI Act.
The SSE’s barrister Susan Wright argued that disclosure would be an actionable breach of confidence, on the grounds that it would be detrimental to SSE if its intellectual property was placed in the public domain and made accessible to competitors, that unrestricted disclosure of the material was not necessary in the public interest, and that the school would have no valid defence for an action for breach of confidence. This was also the view of the Information Commissioner.
Page’s barrister Zoe Gannon argued that the possibility of any competitive disadvantage was exaggerated given new government advice on disclosing such materials, and that the public interest requires parents to be able to know what their children are being taught, and in particular to find out the content of sex education lessons, as they have a legal right to withdraw their children.
Initially the school used section 43 of the FOI Act to withhold information, on the basis that disclosure would damage SSE’s commercial interests and be against the public interest. However the Information Commissioner relied instead on section 41 to reject Page’s complaint. If the tribunal now backs Page’s appeal under S41, this involves deciding that the overall balance of the public interest favours disclosure, and so the logic is that this would also result in her winning over any S43 objection too.
2. Should the school reveal the names of the two representatives of SSE who delivered the lesson?
This is their personal information. Personal data should be withheld under FOI where this would be in line with data protection law, including the UK General Data Protection Regulation (GDPR). The key legal test is laid down in GDPR Article 6(1)(f) – effectively, is releasing this information ‘necessary’ for the ‘legitimate interests’ pursued by Page and do these interests override the interests of the people who are the subject of the information (ie the people who would be publicly identified)?
The SSE’s barrister Susan Wright argued that there was a risk of harassment to the two individuals if they were named publicly. The ICO view was that questions of suitability of the individuals could be addressed by means other than identifying them. Page’s barrister Zoe Gannon argued that the risk of harassment was overstated and it was trumped by Page’s legitimate interest of finding out more about the lesson providers who had taught her daughter.
3. Did Hatcham College carry out full searches for all the information requested?
Page argues that the school failed to conduct proper and thorough searches for lesson material on what might be thought of as the most contentious topics in other lessons. The school argued that this material was not prepared, and so was not actually held.