We are all well versed now on Subject Access Requests and how they are made but there is one area which has become immediately more prevalent since lockdown. With the impeding results season, schools are really going to have to exercise their rights to use exemptions in relation to how exam marks have been arrived at.
As we know, exam results this year due to the pandemic and subsequent lockdown will be based on rigorous assessment, on previous performance and on mock results (dependent on the subject). As such there will be significant records in existence that demonstrate how these grades have been decided. All these records fall right into the scope of GDPR and Subject Access Requests. Therein lies a problem, could students really get to know their grades before they are released publicly?
In short, no, they couldn’t, as whilst there is plenty of time for them to submit a request and get the response within one calendar month, as the request would not likely be deemed excessive or malicious, the Data Protection Act (as I have mentioned in previous briefing sessions and blogs) contains a number of exemptions and some are specifically for the education sector.
This is the bit you will be most interested in. The Data Protection Act 2018, Schedule 2, Part 4, Paragraph 25 (3), sets out your obligations to comply with a Subject Access Request under Article 15, (GDPR), in that, if you do receive a request of the above nature, you have two time periods that are applicable.
- If the request is received prior to the results being released, you 5 months from when requested to release the information but not before the official release date
Or
- you have 40 days from the date the results have been released to provide the response.
Put simply, you do not have the provide the information before exam results have been released, but you are required in accordance with the legislation to explain which exemptions you have exercised, as a controller, in withholding the information as technically you are not refusing.
It may be the case that some requests do go straight to the exam board and they may refer requests back to the school, but the before release date guidance remains the same. So, speak to your DPO’s so you can prepare for this eventuality. If you don’t have a DPO in place, please do get in touch and we will be more than happy to talk you through our DPO service and what we can do to help you. Call 01924 827869 or contact us.
