There should be an item on confidentiality on every governing board agenda and this short read looks at some of the reasons why confidentiality is important. It has been written to help generate some of the questions we should be asking about confidentiality – what it is, when it applies and why it matters. This is not a guide to GDPR although we must remember that the principles of GDPR must be applied to all of our governance activities at all times.
Agreeing that something should be kept confidential is more than just a ‘rubber stamping’ exercise, more than just keeping minutes on a confidential file and more than something we all nod through at the beginning of a board meeting. Agreeing that something is confidential should be done with good reason and not because people want to keep things quiet. Effective governance should always be open and transparent.
All schools must have a policy about how they hold, manage and use pupil and staff data and all schools must have a privacy notice. You must ensure that you have appropriate security measures in place to protect the personal data you hold. This is called the ‘integrity and confidentiality’ principle of the GDPR – also known as the security principle It is worth making sure at least one governor understands the role of GDPR in relation to school governance.
There are some useful documents referenced throughout either as footnotes or at the end of this article.
Confidentiality and Collective Decisions
Governance boards e.g. those with a governance responsibility such as the trust board in a Multi Academy Trust, a governing board in a maintained school or any committees thereof, are corporate bodies and therefore no individual governor has any special powers, except for the chair who may act on behalf of the board in specific circumstances. Decisions made by governors and trustees are reached by a majority of those present at the meeting, sometimes by voting, but always after discussion. There may be disagreement over something and whilst this needs to be recorded in the minutes there are very few situations when we would record who has dissented from the collective decision.
Much of the material that governors and trustees receive and read as part of their role is potentially in the public domain e.g. the meeting minutes. This is because the material has to be made available on the school website or it could be subject to disclosure under the Freedom of Information legislation. You do not have to publish your minutes on the school website but they must be freely available for those who wish to read them. If you are unsure ask your school’s Data Protection Officer.
What is confidentiality?
Let’s start with some of the statutory guidance around confidentiality. Government guidance for maintained schools for example states the governing board may exclude any material relating to
(a) a named person who works, or who it is proposed should work, at the school;
(b) a named pupil at, or candidate for admission to, the school; or
(c) any other matter that, by reason of its nature, the governing body is satisfied should remain confidential.
The guidance clearly states that the governance board must, as soon as reasonably practicable, make available for inspection by any interested person, a copy of the agenda for every meeting; the signed minutes of every such meeting; and any report or other paper considered at any such meeting. It seems reasonable to apply the same principles in an academy trust.
Principles of Confidentiality
The principles of confidentiality rest upon how well we all fulfil our first core function of governance and how we as governors, trustees and clerks foster the trust and goodwill that goes hand in hand with effective governance and ethical leadership. We need to encourage openness whilst at the same time balancing the need for confidentiality as the situation under discussion requires. This is not always easy. It is acknowledged that those of us with children attending and family members working in the school may sometimes find this difficult.
It is worth remembering though that the board is a corporate entity bound by the decisions it makes collectively even if we on an individual level do not always agree. There may of course be times when you need to use the Whistleblowing Policy and this why you must be aware of your school’s whistleblowing procedures.
Remember adhering to the principles of confidentiality applies to all AC’s.
The 7 Principles of Public Life
These principles are often know as The Nolan Principles and everyone should be aware of what the principles are and what they mean in practice. Adhering to the 7 principles underpins everything we do as governors.
Code of Conduct
Every board should be ensuring that everyone signs the school’s Code of Conduct every year and that they actually read it before they sign it; because once a board has agreed something is confidential it is the responsibility of each person to respect that decision. The code should explicitly refer to confidentiality and it is a good idea to ask your clerk to sign it as well. Referring back to your code of conduct from time to time is a useful reminder.
Governance Board meeting agendas, both full board and committees, should always include an item on confidentiality. These are sometimes called Part One and Part Two and there should always be clear iteration between the two sets of minutes. Remember your minutes tell the ‘story’ of your governance activity.
In a Multi Academy Trust you will need to be continually aware of the Trust’s Scheme of Delegation but as governance responsibility sits at trust board level there is a very high likelihood that they will require full oversight of all your minutes including confidential matters.
Part 2 minutes should be used only when appropriate. There is no need to have the headteacher or senior leaders’ Report on the Part 2 agenda or even headline date about attendance or safeguarding – you should never be going into detail about individuals after all. You can chose to identify elements of this Report as confidential in advance if for example you are discussing staffing matters. Remember Ofsted may wish to see these if the need arises especially if they have governance as one of their key lines of inquiry.
The Freedom of Information Act 2000 gives rights of public access to information held by public authorities including schools. Guidance is available here and this document from the Information Commissioners Office is well worth a read. You must release minutes under the provisions of FOI Act unless any of the stated provisions apply, you cannot not release them just because you don’t want to for any reason.
As stated earlier most minutes must be made available to any interested person and many schools have a copy for inspection in the reception area or in a file you can look at on request. Apart from the 3 matters listed above above there may be other matters that the AC consider should remain confidential. Some governance boards keep conversations about restructures or building projects or bids confidential until options are agreed or restructures are costed. Your clerk should be able to advise you.
Confidential minutes should only be shared with those who need to see them – the rule of common sense applies. The Trust has guidance on who should withdraw from a meeting and when and therefore it applies that the minutes pertaining to that withdrawal should not be shared with those who were not there. These rules apply to committee meetings as well.
If you were discussing a staffing structure you may wish to consider putting this on a confidential appendix sometimes called the Part Two minutes. If you use Governor Hub for example you can password protect these minutes in a separate area.
One of the 7 Nolan principles is transparency and you may like to think about the ‘balance’ between your Part One and Part Two minutes – is there any information in Part Two which relates to a named person? Headline safeguarding information or attendance of cohorts is not confidential. If your school has small cohorts you may know the pupils of course so you must never use pupil names in your minutes.
All non-confidential minutes should be shared with all the people attending the meeting.
Storage of confidential minutes
These should be kept separate from the minutes and are often printed on different coloured paper. If filed these must be at least password protected with access limited to those who need it. This should be clearly set out in your records retention policy. Leaving minutes in the back of the store cupboard or under the table in the corner of the school office is not secure!
It is your personal responsibility to ensure that you do not allow confidential material and minutes to ‘fall into the wrong hands’. Everyone is strongly encouraged to use school email addresses, use cloud-based storage systems, reduce what is printed out and to encrypt material as appropriate. This complies both with GDPR and with the need to act with caution about sensitive material. Governor Hub for example is a secure area where you can upload all your paperwork but there are other examples such as Office 365 which are available. If your board is not using a secure area then it is perhaps worth considering. Make sure you clerk has full access to any secure area you use.
You should keep to a minimum documents which you keep at home either printed out or on your personal computer.
The ESFA  may on occasion require urgent information from a trust, usually as a result of requests requiring the ESFA to fulfil its duties to provide information to the Secretary of State. The DfE’s Governance Handbook 2019 states that in such circumstances the ESFA will act reasonably in its requests for information and will have regard to the costs and timescales of providing the information, and where appropriate to its confidentiality. The ESFA strongly discourages Trusts to use of confidentiality clauses. Can you think of any reasons why this might be?
Governing board meetings are not open to the general public, and those who are not governors or Trustees; the Principal; someone from the Executive Leadership Team such as the CEO; teachers and leaders presenting reports e.g. School Business Managers and or SEN leads; Finance leads; and those in attendance by invitation e.g. observers such as National Leaders of Governance or Education cannot attend unless specifically invited.
Your clerk must ensure that they are clear as to who can vote on decisions. There may be times when observers are asked to leave a meeting – this is not a personal reflection on them but is in fact to ensure transparency – i.e. only those with governing responsibility are making the decisions. This is why you should be clear in the attendance register who is a governor or trustee and who forms part of the quorum.
Governors or trustees with a pecuniary interest in any matter should leave the meeting at the point at which the matter is discussed; and this exit and return should be noted in the minutes and the time declared. This is why having a clear and up to date register of business and pecuniary interests is so important. Your clerk will be able to advise.
A lot of what is said and discussed at a meeting is not recorded in the minutes because unless otherwise stipulated minutes are not verbatim records of the discussion. Governors and trustees need to be able to ruminate and consider the matters in front of them without fear of reprisal Again your clerk should be able to advise and a good clerk intuitively knows what not to write down. Everyone should of remain professional at all times even if matters get heated.
If you are participating in a virtual governing board meeting try to find a quiet space to sit. This is not always easy of course but you must try and keep interruptions to a minimum and make sure that you cannot be overheard. If possible ensure that you have a private internet connection. Think about checking your background for personal information – use a virtual drop if you can.
Some chairs and headteachers meet regularly to discuss a variety of issues. Sometimes there is no agenda to these meetings although there may be notes of the discussion taken by either party. These meetings are often confidential one to one conversations but must not take the place of board decisions. The relationship between the Chair and the Principal is one of great importance and they should be able to talk freely.
Chair’s Actions, i.e. that activities which chairs have undertaken because they are the chair, are sometimes confused with Chair’s Powers to Act which are for urgent matters only.
Powers to Act should also not be used to make routine decisions outside of board meetings; e.g. to make decisions which would normally be made by the governors or trustees. Also, there are some decisions which cannot be made by the Chair alone; for example they cannot be delegated to one person and these are covered matters covered in the Trust’s Scheme of Delegation and Articles of Association These include;
That said some Chairs never use Chair’s Powers to Act.
Post and Correspondence
Governors and trustees sometimes receive written communication e.g. letters from parents or staff. These should not be opened by school staff. This would protect the writer in the event of a complaint. The contact details – usually an email address for the Chair – should be published on the website. These should be school email addresses and not personal ones. You should not enter in correspondence with parents wearing your governor hat neither should you correspond with staff unless you are both agreed as to the parameters of the conversation – remember staff workload and maintaining professional boundaries. Staff should not put governors in a difficult position by asking for a ‘quiet word’ – if this does happen you might like to suggest they follow for example the complaints or whistleblowing policy. This is never easy and if you find yourself in this position perhaps ask a trusted governor colleague from another school for support and advice – you do not need to disclose the nature of the ‘quiet word’. Saying that if there are staff ‘rumbles’ about the school leadership then speak to the chair in the first instance.
It is essential that you only send emails to those you intend to send them to, that you use bcc with caution and that you remain respectful at all times. Your emails may be subject to FOI requests.. You must not share your password with anyone and if you have a school email address this must be your primary source of communicating with other governors or trustees and the school. It never advisable to share a personal email address and you should never use a shared email to communicate about governance. There is additional information on GDPR (General Data Protection Regulations available from the Trust’s Data Protection Officer or DPO in the first instance) and all breaches of GDPR must be reported to the Governance Board. If you employ an independent clerk make sure that a) they have a school email and b) access to your documents.
Always be careful when on social media. Remember that when using social media you always leave a digital footprint and that you are bound by both the school’s and Trust’s social media policy. If you are part of a closed group such as on Facebook (e.g. School Governors UK or a locality or subject based group) then you must not reveal the school where you govern and you must respect the groups rules. Some groups are unmoderated and therefore it is even more important that you share appropriately. These groups are a useful source of information and advice but should always be treated with caution. Anecdotally there are governors who have bumped up against the school’s code of conduct by commenting on social media so be cautious. This should not stop you using Twitter or Instagram of course!
If you are part of a WhatsApp or email group for example you must make sure that all the governors or trustee are included. Again you must respect the need for confidentiality and to be respectful. You must never make decisions that would normally take place in a meeting on WhatsApp – it is acceptable to remind people to look at their school emails ( we are volunteers after all) or to agree to change the date of a meeting as long as everyone knows but it is not acceptable to make a budget related decision!
The DfE recommend that schools should base their whistleblowing procedure on the relevant local authority’s or Trusts procedures. They should ensure that the latest Whistleblowing Policy is available to anyone who wants to read it. Some schools have a copy in the staff room for example. If someone wants to read this policy, they should be able to do so freely and without fear of judgement.
The DfE recommend that you should appoint at least one member of staff and at least one governor who other members of staff can contact if they wish to report concerns.
Your board minutes should include a record of:
· your school’s whistleblowing arrangements,
· the people in and outside the school that staff members should report concerns to. This can include references to fraud.
Any reported concerns must be treated confidentiality and reported appropriately. Further information from the DfE can be found here. Whistleblowing is not something to be entered into lightly but that should not detract from the occasions when whistleblowing might be an appropriate course of action.
Governors need to be aware that personal grievances (e.g. bullying, harassment, discrimination) are not covered by whistleblowing law, unless your particular case is in the public interest. These should be reported under the school’s grievance policy and the Governance Board/Council/Chair should seek the necessary advice if needed. Sometimes staff talk to Governors in confidence – remember that you may not be able to keep these confidences. The conversations which take place between the Chair and the Principal are privileged conversations and as long as the rest of the board are aware that these conversations take place appropriately then there is no cause for concern.
Some useful questions include;
Remember…if in doubt seek advice from;
1. Your Chair and Headteacher
2. Your clerk (or their employer)
3. The Local Authority Governor Services or Trust central team
 General Data Protection Regulations
 The School Governance (Roles, Procedures and Allowances) (England) Regulations 2013
 Education and Skills Funding Agency
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