1: COVID-19 and charities – School results and subject access requests

With the COVID-19 pandemic causing widespread school closures, the way pupils will be assessed this year has been dramatically altered. Instead of pupils sitting exams, grades will be awarded through a system that relies on teachers assessing their pupils’ grades. As such, schools should be mindful of the possibility of disappointed pupils (or their parents) submitting subject access requests (or SARs) to gain information about how their grades were arrived at.

Overview of the results system this year

As exams have been cancelled, schools are being asked to determine ‘centre assessment grades’ for each subject and to rank their pupils within each of those grades. The centre assessment grades and rank order will then be submitted to the exam boards for standardisation.

According to Ofqual’s guidance, centre assessment grades must ‘reflect a fair, reasonable and carefully considered judgement of the most likely grade a student would have achieved if they had sat their exams this summer and completed any non-exam assessment.’ This is explicitly stated as being distinct from predicted grades. Teachers will need to consider a range of factors, including mock exam results, classwork, and non-assessment exam performance, as well as the school’s previous performance in the subject. There are no set rules on how much weight should be given to each factor at teachers’ disposal, nor is the list of factors to be considered exhaustive. Ofqual’s guidance makes it clear that schools know their pupils best and so should be instrumental in calculating their grades.

How may SARs work in this case

Under the GDPR data subjects have the right to request copies of their personal data held by data controllers. In this case, schools would act as data controllers, holding significant personal data on their pupils, the data subjects.

The information data subjects can request would include information about how their grades were assessed under the new system. There is an exemption under the Data Protection Act 2018 which enables schools to delay providing exam results and related documents until after results have been announced. However, it only allows schools to delay disclosing information, it does not allow schools to disregard the request.

Preparing for subject access requests

There are some practical steps that schools can take to prepare for these sorts of subject access requests:

• consider which assessment documents actually need to be retained. If there is not a need to retain a document then it should be securely destroyed. This will help schools to comply with the ‘storage limitation’ principle set out in the relevant legislation, and will mean less information has to be considered if the school later receives a subject access request. Note, however, that once a subject access request is received it is unlawful to destroy information for the purpose of preventing disclosure;
• make sure all of the remaining information about the assessments is collected and stored securely at the end of the assessment process, so it is easy to locate in the event of a subject access request; and
• make sure the school’s data protection policy is up-to-date and sets out a clear procedure for handling requests.

Responding to subject access requests

Schools that receive subject access requests about how grades were assessed will need to be particularly alert to the following issues:

• pupils receiving their GCSE and A-level results will usually be old enough to make their own subject access requests. If parents make requests on pupils’ behalf the school must ensure that the pupils have consented to this;
• a person making a subject access request is not necessarily entitled to receive personal data about other people. This means pupils or their parents will not necessarily be entitled to receive information that reveals other pupils’ rankings or individual teachers’ opinions. When assessing whether to release such information, schools should consider the relevant factors outlined in the legislation and in the regulator’s guidance;
• the normal deadline for responding to a subject access request is one month from the date it is received, so schools need to consider how they will resource requests, particularly during the school holidays. It is possible to ask for an extension to the deadline under certain circumstances; and
• if a request for information about the assessment process is received before the results are announced then the deadline for providing the information is 40 days after the announcement of the results, or five months from the date the request is made (whichever is earlier).

Should you have any queries about subject access requests, or how to prepare for them, please contact the data protection team at BDB Pitmans or your usual BDB Pitmans contact who will be able to refer you.