Rquest for comments.

Examinations

The Examination and Assessment Process

The 1998 Act states that "new processing" which started after 24 
October 1998 is immediately subject to the new legislation, 
whereas processing which was under way before that date will be 
subject to the transitional arrangements.  "Processing" refers to 
purposes and procedures - thus, the addition of data to an existing 
database would not count as new processing.  In the case of 
examinations and actual scripts, the continuation of previous 
practices, applied to new students, will also not count as new 
processing until the end of the transitional period.  

* HE and FE institutions should assume that, with the exception of 
those parts of the examination process that are specifically 
exempted by the 1998 Act, all personal data produced and 
processed for the purpose of examinations and assessment may 
be obtained by a data subject via a data subject request.

Examinationscripts

Examination scripts are expressly exempted from the data subject 
access rules. This means that HE and FE institutions are under no 
obligation to permit examination candidates to have access to 
either original scripts or copies of the scripts.

* HE and FE institutions have the absolute discretion to deny 
subject access requests for examination scripts.  “Examination” 
means “any process for determining the knowledge, intelligence, 
skill or ability of a candidate by reference to his performance in any 
test, work or other activity” thus written assessment work, field 
work etc. are covered.

InternalExaminers’ comments

Internal examiners’ comments, whether made on the script or in 
another form that allows them to be held and applied to the original 
script (e.g. in a coded table), will be covered by the 1998 Act.  A 
data subject has the right to request that a copy or summary "in 
intelligible form" is provided within the stipulated timescale.  This 
limit is normally 40 days, but in the case of examinations the Act 
specifically notes that a request may be made before results are 
announced.  In this case there is a limit of five months from the 
request or 40 days from the announcement of the result, whichever 
is the earlier.  

* HE and FE institutions should ensure that internal examiners’ 
comments on examination scripts, assessed work etc. are capable 
of being produced for a data subject in a meaningful form.

* HE and FE institutions should ensure that internal examiners’ 
comments on examination scripts, assessed work etc. are both 
intelligible and appropriate.  Guidance as to correct form and 
procedure should be given to examiners where deemed appropriate.

* HE and FE institutions should consider how the recording of 
internal examiners’ comments could be made more appropriate for 
subject access (e.g. tear off comment sheets in examination script 
booklets).

ExternalExaminer’s comments

  External examiner’s comments, whether made on the script or in 
another form that allows them to be held and applied to the original 
script or to a specific candidate (e.g. an examiner’s report), will be 
covered by the 1998 Act. A data subject has the right to request 
that a copy or summary "in intelligible form" is provided within the 
stipulated timescale.  This limit is normally 40 days, but in the 
case of examinations the Act specifically notes that a request may 
be made before results are announced.  In this case there is a limit 
of five months from the request or 40 days from the announcement 
of the result, whichever is the earlier

 *HE and FE institutions should ensure that external examiners’ 
comments on examination scripts, assessed work etc.:
 
 - are capable of being produced for a data subject in a meaningful 
form.
 - are both intelligible and appropriate.  Guidance as to correct form 
and procedure should be given to examiners where deemed 
appropriate.

* HE and FE institutions should consider how the recording of 
internal examiners’ comments could be made more appropriate for 
subject access.

Automaticprocessing

The 1998 Act provides data subjects with specific rights to be 
informed of the logic of any purely automated decision that 
significantly affects them. This may have some relevance to 
assessment and examinations, but major pass/fail or grade 
distinctions are rarely, if ever, made purely on the basis of 
automated decisions. HE and FE institutions will normally require 
that subject area examination boards review and validate the 
results of each candidate, taking into account such variables as 
personal circumstances, health issues etc.  Candidates are also 
entitled to have an explanation of how automated processes such 
as degree classification software operate.  In practice, HE and FE 
institutions usually already provide such explanation, as review of 
administrative procedures will normally be required in the event of a 
student appeal against classification etc.

* HE and FE institutions should have:

 - a formal statement that explains the logic behind any 
assessment that is based entirely on automated means, including 
single tests that form only a part of some larger assessment;  
 - a formal statement that explains the logic behind any 
classification or grading system that operates using automated 
means.

ExaminationBoard Minutes and related documentation

Minutes of Examination Boards that contain discussion about data 
subjects will be subject to data subject access where candidates 
are named, or referred to by identifiers from which candidates may 
be identified (such as PINs), unless the data cannot be disclosed 
without additionally disclosing personal data about a third party.

Minutes of special circumstance committees that make decisions 
with regard to evidence supplied by candidates for reduced 
performance or non-performance in examinations, for the purposes 
of supplying recommendations for consideration by Examination 
Boards, will be subject to data subject access where candidates 
are named, or referred to by identifiers from which candidates may 
be identified (such as PINs), unless the data cannot be disclosed 
without additionally disclosing personal data about a third party.

* HE and FE institutions should provide 

 - copies of those parts of minutes of examination boards that refer 
to the data subject who is making the subject access request, 
unless the data cannot be disclosed without additionally disclosing 
personal data about a third party;
 - copies of those parts of minutes of special circumstance 
committees that refer to the data subject who is making the 
subject access request, unless the data cannot be disclosed 
without additionally disclosing personal data about a third party.

Disclosure of results

As personal data, examination results should not be disclosed to 
third parties without the data subject’s consent. This does provide 
HE and FE institutions with some difficulties, as many institutions 
have traditionally publicly disclosed examination results in a variety 
of ways, including noticeboards, newspapers, graduation 
documentation etc.  Indeed a number of institutions have an 
obligation in their statutes to publish results.  The majority of 
students do not find these methods of disclosure harmful or 
distressing, indeed it is likely that there would be an outcry if they 
were abruptly ended.  However, these methods of disclosure are 
usually of a local and limited nature.  Posting examination and 
degree results on the Internet would clearly go beyond a local and 
limited distribution. It is difficult to argue that there is anything 
distressing or damaging about results being posted locally in public 
with names; on the other hand, individual cases have arisen where 
students have claimed that having their whereabouts made known 
put them at risk.

* HE and FE institutions should provide:

 - an explanation of where, and how, data subjects may expect to 
see their results posted; 
 - a mechanism through which data subjects can effectively 
exercise their right to object to their results being displayed in all or 
any particular fora.

* HE and FE institutions should not:

 - display results outside their local area (e.g. via the Internet) 
without obtaining the consent of the data subjects;
 - in the absence of consent from the data subject, disclose results 
over the telephone, unless a suitable security system (e.g. 
passwords) is in place to ensure that the caller is in fact the 
relevant data subject;
 - withhold results from candidates in financial arrears.


* HE and FE institutions should consider:

 - a mechanism for data subjects to indicate their consent to the 
institution displaying their results in particular fora;  
 - publishing results on publicly accessible noticeboards with 
identity numbers instead of names;
 - providing results directly to each student face-to-face, via post, or 
via secure electronic means.



Andrew Charlesworth
Senior Lecturer in IT law
Director, Information Law and Technology Unit
University of Hull Law School
Hull, UK, HU6 7RX
Voice: 01482 466387   Fax:   01482 466388
E-mail: [log in to unmask]


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