After Results Day – student data subject access requests

We look at how students might request grading information from schools and colleges following results day and how to deal with such requests.

As we’ve seen with the recent Scottish results, the replacement grading system put in place due to Covid-19 is likely to be much more controversial than exam-based grades. As a result, there are likely to be a significant number of challenges to the grades, which may seek to question teachers’ assessments as well as the exam board’s moderation.

Where a student requests sight of the teachers’ assessments in respect of their grades, this should be treated as a data subject access request (“DSAR”).

We published a detailed guide to DSARs for students’ unions earlier this month, much of which will be relevant when dealing with any DSAR, but below we outline some specific guidance to deal with DSARs following results day.

Can parents/guardians request information on their child’s behalf?

This is a question of whether the student has the capacity to make a DSAR, but it is unlikely that students taking GCSEs or A levels will lack capacity.

It is therefore unlikely that parents/guardians will be permitted to make a DSAR on their child’s behalf unless their child has given them express permission to do so (and the school or college should ensure it has seen any such permission before responding to the parent/guardian).

In some circumstances it might be appropriate to check the identity of the individual making the DSAR before releasing information to them.

Parents of pupils at maintained schools (not independent schools and academy trusts) may request copies of educational records under The Education (Pupil Information) (England) Regulations 2005 and they do not need consent from the pupil to do so. The information must be made available within 15 days of receipt of the request.  However parents may choose not to use this approach as the information they will receive is not likely to shed any light on how their child was assessed. This is because where the pupil is under consideration for admission to a new school, including an independent school, 16 to 19 academy, or further or higher education institution, the education record must not include the results of any assessment of the pupil's achievements.

Is there an exemption meaning we don’t have to release exam information?

There is an exemption from the usual time limits applicable on receiving a DSAR which allows exam information to be withheld prior to results day.

Following publication of results, this exemption ceases to apply and requests should be dealt with as a normal DSAR (ordinarily within a month of receipt of the request).

What information do we have to disclose?

The request for information should be reviewed and paper and electronic records searched for relevant information. It might be helpful to agree with the student that you will limit your search, e.g. agreeing to limit the search to the information shared with the exam board.

Schools and colleges should take care to redact the personal data of others contained within the information being disclosed where this is appropriate. The ICO has issued guidance to schools advising that, unless the cohort is particularly small, the rank order of pupils should also be disclosed if requested as this is unlikely to reveal the personal data of other students. 

In addition to providing a copy of a student’s personal data, schools and colleges will need to provide ‘other information’ to students on how their personal data is handled. Much of this information will be contained within the school’s privacy notice, but it should be checked against the information legally required to be given. The ICO have a list of information to be provided as ‘other information’. Wrigleys can advise schools and colleges on preparing a response letter if required.

Can we expect Freedom of Information Act requests?

Individuals have the right of access to certain information held by a public authority under the Freedom of Information Act 2000 (FOIA).  Maintained schools, academies and multi academy trusts are public authorities for this purpose. Independent schools and exam boards, on the other hand, are not.  Some students and parents wanting access to information and records that have been used to decide a student’s awarded grade may make a FOIA request in addition to a DSAR. It is also possible that journalists and other third parties may do so, given the public interest in this year’s unusual grading system. Internal communications between teachers, minutes of leadership team meetings, policy documents and teacher assessment guidelines on assessing and ranking students could all be included in such requests. 

What are our obligations under the FOIA

When a school or academy receives a valid FOIA request they have two main legal obligations unless an exemption applies (see below).  The first obligation is to confirm or deny whether or not they hold the information that has been requested. This obligation will apply in all but exceptional circumstances.

The second obligation is to provide the individual who has made the request with a copy of the information, usually within the earlier of 20 school days or 60 working days.

Are there any exemptions to disclosure?

In some circumstances, an exemption may apply. The most relevant to consider where requests relating to this year’s exam grading decisions are concerned are:

1.         Disclosure is, or is likely to, prejudice the “effective conduct of public affairs” - this includes situations when disclosure would inhibit free and frank advice and discussion.  The exemption can only be relied upon if the relevant “qualified person” reasonably decides that it applies. For local authority maintained schools this is the Chair of Governors; for academies it is the Chair of Trustees.

2.         Breach of other legal obligations - a FOIA request cannot be complied with if disclosing the information would breach any of the data protection principles in the GDPR. This means, in practice, a FOIA request for access to another person’s personal data related to exam grading is unlikely to be successful.

3.         The information is held with a view to its future publication – this only applies where it is reasonable to withhold the information until its planned publication. This might apply, for example, where finalised minutes of meetings will be published on the academy trust’s website at a later date.

What are “Hybrid Requests”?

Hybrid requests are requests for information where some of the information falls under a DSAR and some under a FOIA request.  In these circumstances it is important to identify which information should be released and which different exemptions are being relied upon for any sections of the information not released.

Action required

Results day is always a stressful time of year for students, particularly when results awarded are not as high as they had hoped.  The adapted assessment regime in place this year may well increase levels of stress for students and is likely to place a greater focus than usual on how those results were generated.

Schools and colleges should put in place effective procedures to recognise and quickly deal with DSARs and FOIA requests so that students can fully understand the assessment upon which their results are based.