Changes to data protection law: the impact on schools and academy trusts

We summarise the elements of GDPR that are specific for schools and academies. We highlight what is important to be aware of and what to prepare for.

Background
The rules on data protection are shortly to change, with the introduction of the EU's General Data Protection Regulation ("GDPR") from 25th May 2018.  This will affect how schools and academy trusts collect, store and share information about pupils and employees.  It is important to be aware of, and prepare for, the changes now.

What is changing?
The GDPR contains a range of new rights for individuals in respect of their personal data, and new obligations which those who control and/or process data must comply with.

Some of the most significant changes which will affect schools are as follows:

•    Obligation to obtain consent: the GDPR has a much more strict consent requirement before schools can lawfully process personal data.  This will impact on the way in which schools collect information about pupils, employees, parents, governors and others.  

Consent must be specific, freely given, informed and unambiguous.  Pre-ticked boxes, 'opt-outs' and 'implied consent' will not be enough.  For employees, automatically including a consent clause as part of the employment contract will not be sufficient.  When the processing of personal data has multiple purposes, each purpose must have consent.  

Importantly, an individual has the right to withdraw their consent (for any or all processing purposes) at any time.

•    Right to access information: the GDPR gives individuals the right to access their personal information (a 'data subject access request'), which must be provided by an organisation without delay (within no more than one month of receipt of the request (reduced from 40 days)), free of charge (previously a £10 charge could be requested).  

•    Obligation to display privacy notices: privacy notices (such as those displayed on school and academy trust websites) will need more detail under the GDPR, including information about who data might be passed to and how to complain.  The GDPR also contains new provisions to enhance the protection of children's personal data.  Where services are offered directly to a child, the privacy notice must be written in a clear, plain way that a child will understand.

•    The right to be forgotten: individuals will have the right to request that organisations delete their personal data in certain circumstances (e.g. their data is no longer necessary for the purpose for which it was originally collected).  This could include a former employee asking for a poor disciplinary record to be deleted.

•    'Legitimate interest' justification for data processing: schools may currently process personal data about pupils/employees on the basis that it is necessary for the purposes of the legitimate interests of the school or academy trust, and that the processing doesn’t prejudice the rights, freedoms or legitimate interests of the person whose data is being shared.  There are two changes to this in the GDPR , both of which mean schools and academy trusts are very likely to need to find alternative justifications for data processing:

o    The GDPR removes the legitimate interest justification for public authorities.  Although there is no definition of "public authorities" in the GDPR, it is likely that it will include schools and academy trusts, as is the case under current data protection law.

o    The legitimate interest justification in the GDPR makes specific reference to the need to consider the interests and rights of children, where their data is being processed.  This means that, even if the legitimate interests justification could be relied on, any decision to process children's data would need to be carefully documented and a risk assessment conducted.  

•    Data breach notification: organisations must notify the ICO of all data breaches without undue delay and where feasible within 72 hours, unless the data breach is unlikely to result in a risk to the individuals concerned.  If the breach is likely to result in high risk to individuals, the GDPR requires organisations to inform those individuals "without undue delay" as well.

•    Increased fines: the GDPR will increase the maximum fines that may be imposed in respect of data protection breaches, up to a maximum of €20million or 4% of turnover, whichever is greater.

What should schools and academy trusts be doing to prepare?
You should get a head start on preparing for the new regime by taking action now.  Reading up on the changes to understand the effect they will have is vital, and the ICO website has lots of useful guidance (including some specific guidance on general data protection principles for schools here).

Some other, practical steps to take now include:

1.    Do an internal audit: you need to understand what happens to data within the academy trust or school, in order to manage any risks associated with processing it.  Interview staff, go to team meetings and carry out questionnaires to try to understand how and what data is collected, what happens to it, where it is stored, who has responsibility for it and what it is used for.

2.    Review policies and guidance: check your privacy notices and make sure you have an internal data protection policy.  These should be transparent, easily accessible and in clear and plain language.

3.    Develop a response plan: put in place policies and procedures to ensure that you can react quickly to any data breaches and notify in time where required.  This could include agreed media statements, important or useful contacts (such as a PR company), required follow-up action and the names of the key people responsible for dealing with incidents.  Test the system with a dummy breach.

4.    Training: give staff regular training on data protection matters.  The ICO website has a useful 'Think Privacy' toolkit for charities, which would be useful for academy trusts, with free resources to download (available here).  Most breaches are due to human error, so effective training of staff is a key part of minimising the risks.  Use this as an opportunity to reinforce current understanding of data protection procedures in your school, and the need to ensure data subject access requests are referred to and dealt with by a trained and dedicated data protection officer.

5.    Review and renew your data forms:  Most schools and academies will refresh their pupil data, including key contacts, at the start of each new academic year.  This is an ideal opportunity to ensure that your data capture is up to date and includes the new requirements.  September 2018 is too late and you will already be in breach.

A couple of reminders
How many schools provide pupil data automatically:

•    to a pupil's parents upon request?  The data subject is the pupil and you may need the pupil's consent.
•    to the police in the course of an investigation? Current data protection rules do allow for information to be passed on for crime prevention or where there may be a risk of harm.  It is for the school to evidence that the exemptions were satisfied and there is a formal request process to assist with this.

Impact of Brexit
Even when the UK is no longer part of the EU, the Government has confirmed that domestic legislation will be enacted which has a similar effect to the GDPR.  Schools and academy trusts should therefore take steps now to understand the changes and prepare for the new regime, to avoid a last minute panic.