22 April, 2020
Following the announcement that the government has cancelled this summer's exams due to the coronavirus pandemic, the exam regulator, Ofqual, has launched a consultation on proposals to award pupils with a calculated grade. Ofqual proposes to award GCSE and A-Level grades by a combination of teacher assessment, class ranking and the past performance of the school.
Under the system proposed by Ofqual, schools will be asked to recommend a grade for pupils in each subject. The assessments will be kept confidential and will not be shared with individual students. Pupils' final grades will then be awarded by the exam boards using the prior attainment of the year group at each school, each school's exam performance in recent years and the expected national outcomes for all pupils. These assessments are to be kept confidential in order to ensure that teachers' professional judgements are as objective as possible and not influenced by pupils or their parents or carers.
In the consultation, Ofqual recognised "the possibility that some centres, students and others may try to exploit the exceptional arrangements we propose… including by seeking inappropriately to influence centre assessment grades or rank order information". In particular, Ofqual has highlighted that the use of subject access requests under data protection law may be one way in which pupils or their parents or carers may seek to obtain an indication of their results ahead of the official results day, currently set to go ahead in August 2020.
The use of subject access requests to attempt to obtain exam results ahead of the official results day is nothing new. There is an exemption in the Data Protection Act 2018 which permit schools or exam boards to delay providing information relating to exam marks and scripts until after the exam results have been announced.
This exemption is found within Schedule 2 (Paragraph 25) of the Data Protection Act 2018. It states that where personal data consists of information collated by a data controller (e.g. a school/college or exam board) "for the purposes of determining the results of an exam" or "in consequence of the determination of the results of an exam" then the timescales for providing this information are extended to either a period of 5 months from the date of the request or a period of 40 days following the announcement of the exam result, whichever is earlier.
This exemption should provide comfort to schools and colleges that should you receive such a request, you are able to delay the disclosure of information relating to assessments of grades until after results day. However, it is important to note that this is not a blanket exemption and it only permits schools or colleges to delay providing the information - it does not allow you to refuse to deal with the subject access request in its entirety.
Whilst schools and colleges will be able to delay responding to subject access request relating to exam marks, we envisage that subject access requests will be used as a tool to gain information about how the assessments were made in the event pupils are unhappy with their exam results once they have been announced.
We would therefore recommend that you familiarise yourself with your Data Protection Policy and/or Subject Access Request Policy to understand the steps that need to be taken in the event a subject access request is received. In particular, we would remind schools/colleges that the majority of pupils sitting GCSE and A-Level exams are old enough to make subject access requests on their own behalf. Therefore if a subject access request is received from a parent/carer, you will need to ensure the pupil has given permission to their parent/carer to make the request and consents to you disclosing the information to them. You should also be mindful that any personal information recorded may have to be disclosed at a later date if a pupil makes a subject access request.
During this unprecedented time, schools and colleges may see an increase in subject access requests - either before exam results are announced or following the exam results being published in order to understand how grades have been awarded.
A copy of Ofqual's consultation, which is open until Wednesday 29 April 2020, can be found here - https://www.gov.uk/government/consultations/exceptional-arrangements-for-exam-grading-and-assessment-in-2020
ICO guidance relating to the exam marks exemption can be found here - https://ico.org.uk/for-organisations/guide-to-data-protection/guide-to-the-general-data-protection-regulation-gdpr/exemptions/
For any assistance or advice in handling subject access requests, please contact Bethany Paliga in our Governance, Procurement & Information department via email or phone on 01254 222347. Alternatively send any question through to Forbes Solicitors via our online Contact Form.