Freedom of information and the curriculum
13 June 2023 | Applicable law: England and Wales | 4 minute read
The provision of relationship and sex education classes continues to be a tricky topic for schools to navigate. Schools need to feel confident that they are adequately meeting the needs of all pupils, whilst also minimising risk of being caught up in a highly-politicised debate.
A recent decision in relation to a Freedom of Information request made by a parent to their child's school for teaching materials and lesson plans for relationship and sex education classes will provide some useful clarity to schools on what parents may or may not have a right to be provided with.
The Freedom of Information Act applies to maintained schools, free school, academies and many colleges and higher education organisations. Whilst independent schools are not within the scope of the Freedom of Information Act, they may choose to follow a similar approach under their own policies.
The parent had requested copies of the lesson plan and slides presented to her daughter in a class taught on consent by facilitators from the School of Sexuality Education ('SoSE'). The parent also requested lesson plans from other sessions and details about the facilitators from SoSE who taught the class. The school provided certain lesson plans, but withheld the lesson materials on the basis that providing them would prejudice commercial interests, and also withheld the information about the facilitators on the basis that this information constituted personal data. The parent referred the matter to the Information Commissioner, and having been denied the information, appealed that decision.
The key points advanced for the parent in front of the Tribunal were that:
- the provisions relating to commercial interests and personal data were not engaged;
- there was a public interest in disclosure of the materials; and
- there was an implied statutory duty under s405 of the Education Act 1996 for schools to give parents access to the materials used to teach relationship and sex education (in order to allow them to make an informed decision as to whether to withdraw their children from the class).
It was held that there was no such implied statutory duty on schools under s405 of the Education Act to give parents access to materials used to teach relationship and sex education. Even if such a duty existed, it would not have extended to providing parents with copies of all the materials, and if it did this would not have meant that they could not be subject to confidentiality restrictions, for example by password protection.
As to public interest, the Tribunal was satisfied that the materials were confidential, and the public interest in disclosure was outweighed by the risk to SoSE that their slides would be used by other organisations, given the difficulty of enforcing copyright protections. A helpful aspect which also in the Tribunal's view limited the public interest in disclosure was that the SoSE had a general practice of offering to run through slides and class structures with parents. When balancing the public interest against confidentiality, the Tribunal was satisfied that offering transparency to parents in this way with parent-specific briefings helped to limit the public interest in disclosure of the information to the world at large. Finally, the Tribunal stated that whilst there was a legitimate interest in relation to transparency in who is teaching sex education, this was satisfied by parents knowing that SoSE were responsible for delivering sessions, and that the SoSE facilitators appeared on their website.
Overall, the court found a clear distinction between obligations to provide material to parents and to the public at large. Schools should ensure that they offer an appropriate level of transparency for parents as to the curriculum, including opportunities to find out more information. However, this sharing of information with parents need not extend to sharing all materials, as such materials can be capable of being confidential or commercially sensitive and there is no implied statutory duty to do so.
The Tribunal's comments about SoSE's general practice of offering to run through their slides and class structures with parents is helpful. Parents being given the opportunity to see the materials and discuss their content was held significantly to limit the public interest in disclosure of the slides to the public at large. As such, schools should consider ensuring that procedures are in place to make information available to parents about the content and delivery of classes in order to help limit the risk of disclosure of documents to the public or the media.
Teaching of relationship and sex education inevitably produces a range of reactions from the school community, given the differing personal and cultural attitudes to the subject. Undoubtedly, openness with parents is required but few schools will want to become embroiled in media commentary on such complex subjects. As this case shows, it is worth considering in advance exactly what will be made available and by what means. We also recommend having a plan in place for any subsequent challenges to that. It is one of an increasing number of areas for schools where there is significant overlap between legal and reputational issues.