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Swamped with Subject Access Requests?

The cancellation of this year's GCSE and A-level exams gave Ofqual an unprecedented challenge in determining how grades should be awarded whilst providing the fairest means of enabling students to move on to further studies or employment.

This unprecedented decision by Ofqual meant that schools were likely to see an influx of subject access requests (SARs) where parents, carers or students were concerned that the grade has been affected by bias or discrimination.

In its guidance, Ofqual provides that where a student, their parent(s) or a carer believe that the wrong grade was awarded as a result of bias or discrimination, they have a right to complain to the school and/or make a complaint of malpractice or maladministration to the awarding organisation. Additionally, under data protection legislation, students or parents or carers with the student's consent can also submit SARs to schools and examination bodies to ascertain what information relating to them was discussed and shared with examination bodies for the grades to be determined.

In this regard and the recent publication of detailed guidance on the right of access - a fundamental right under data protection law - it has never been more necessary in this difficult time for schools to understand and know how to deal with a SAR effectively and efficiently.

Briefly, a SAR is right for an individual or by a third party on the individual's behalf to access and receive a copy of their personal data and other supplementary information. The request can be made verbally or in writing, including via social media. Generally, the SAR should be responded without delay and within one month of the receipt of the request and in most circumstances, the request must be dealt with free of charge.

This article will focus on SARs pertaining to education data and provides a brief overview of the guidance through a series of frequently asked questions and answers.

What is education data?

In accordance with the Data Protection Act 2018, it is personal data which consists of information that forms part of an educational record and is not data that relates to health. Put simply, it includes most information about current and past pupils that is processed by on behalf of a school. It is possible however that some of the information could fall outside the educational record, for e.g. information about a pupil provided by a parent of another child does not form part of the educational record.

The definition applies to mostly all schools including maintained schools, independent schools and academies.

How can education data be accessed?

There are two different rights to information schools hold about pupils:

• the pupil's right of access under Article 15 of the GDPR
• the parent's right of access to their child's educational records - In England and Wales this right is only relevant to maintained schools.

It is important to understand the distinction between the two rights because the information you provide may differ depending on which right applies, and different time limits apply for compliance. Further, it is important to be aware that parents can only submit a SAR for information about their child if the concerned child lacks competence to do so or where their consent is given.

Is there a fee for providing subject access to education data?

No. There are no special rules that allows you to charge fees if a SAR is made for education data.

If the SAR is received during school holidays, do the standard timescales apply to comply with the request?

There are no special rules that apply for extension of time for dealing with the SAR. If a SAR is received during the school holidays or when a school is closed due to the pandemic, the normal timescales for complying with a SAR apply.

Is education data exempt from subject access?

The exemptions and restrictions apply to education data in the same way as it does to other types of personal data. For e.g. if personal data relating to someone else other than the requester is contained within the concerned educational record, consideration must given to the rules relating to third party data before the data can be disclosed to the requester. Further exemptions and restrictions that apply to education data must also be borne in mind whilst processing the SAR.

Is the education data to be disclosed, if it means that the disclosure is likely to cause serious harm?

If the extent of complying with the SAR is likely to cause serious harm to the physical or mental health to any individual, in most circumstances you will be exempt from providing education data in response to a SAR.

This article is a snapshot of education data and SARs, but the good news is that our specialist data protection lawyer, Bethany Paliga will be able to provide your school with comprehensive guidance and advice on how to deal with a SAR effectively and efficiently.

For more information contact Bethany Paliga in our Education department via email or phone on 01254 222347. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

Learn more about our Education department here

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