[log in to unmask] wrote:
>
>
> To clarify the position concerning examination marks, for most usual
> purposes, John Gledhill is perfectly accurate in his exemplary brief
> comment (e-mail below) that:-
>
> 'The students' answers are not data about them. The marks
> and comments are.'
>
> The script will contain personal data, albeit not as part of the
> answer. The candidate number written on the front is personal data.
>
> It is also possible (but unusual) that a student's written answer in
> an examination script could contain personal data. An essay on the
> battle of Malden is unlikely to contain personal data. An essay
> entitled 'my home town' or 'if I were Attila' could well contain
> personal data.
>
> The detailed (lengthier) answer to the question is a follows, (with a
> 'twist').
>
> AN ACADEMIC QUESTION
>
> If the contents of the examination script are personal data, to the
> extent those contents are recorded by the candidate, they are exempt
> from the DPA 98 subject access provisions. If the contents are not
> personal data, the provisions do not apply.
>
> The Data Protection Act 1998 (DPA 98') does not say explicitly that
> students' answers are personal data, and nor does it say the answers
> are not. The DPA 98 makes the matter an academic question (if you
> pardon the use of that expression in this context).
>
> The DPA 98 exempts 'information recorded by candidates during .... an
> examination' from the subject access provisions of section 7 DPA 98 by
> express exemption.
>
> The DPA 98 states 'Personal data consisting of information recorded by
> candidates during an academic, professional or other examination are
> exempt from section 7.'
>
> "Examination"
>
> includes 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.
>
> It is not a foregone conclusion that the contents of the examination
> script are 'personal data'.
>
> "Personal data"
>
> 'is data which relate to a living individual who
> can be identified from those data or from those
> data and other information which is in the
> possession of, or is likely to come into the
> possession of, the data controller and includes
> any expression of opinion about the individual and
> any indication of the intentions of the data
> controller or any other person in respect of the
> individual;'
>
> MARKS AND COMMENTS ARE PERSONAL DATA
>
> Whilst the essay on the battle of Malden is probably not personal
> data, any other information recorded on the script by the candidate
> which can be used to identify the candidate is, but is exempt from
> disclosure.
>
> The examiner's marks and/or comments appear to be expressions of
> opinion, covered by the definition of personal data, but not exempted
> by the DPA 98 from the subject access provisions.
>
> Even if the marks and comments are written on the script, that does
> not mean the student obtains access to the script, but only the
> 'personal data'. The data controller's obligation is to communicate
> 'in an intelligible form ... the information constituting any personal
> data of which that individual is the data subject and any information
> available to the data controller as to the source of those data'.
>
> Hence, if the essay on the battle of Malden is not 'personal data',
> which seems likely, all the student can obtain is the marks and
> comments.
>
> For absolute certainty, ensure the candidate writes the 'personal
> data' on the script, like the candidate number, and ensure examiners
> avoid putting marks and comments directly on the script. If the
> candidate wants the marks, the candidate can have a copy of the
> separate record but cannot also use the DPA 98 indirectly to obtain
> the script.
>
> If the student wishes to challenge the marking of the script, there
> are legal mechanisms available to obtain access to the scripts, but it
> is not as simple as applying under the DPA 98.
>
> EXTENSION OF NORMAL TIMESCALES FOR COMPLIANCE
>
> In relation to obtaining access to the marks, the normal timescales do
> not apply.
>
> If the time for responding to a valid subject access request under
> section 7 falls earlier than the day the results are announced, the
> time for responding is different. The data controller must instead
> comply with a valid request by the earlier of forty days beginning
> with the announcement of the results or five months from the date a
> valid request is made.
>
> So who is going to ask, what happens if all the students apply more
> than five months before the results come out?
>
> To be continued .......
>
> --
>
> From:
>
> Clifford G. Miller
> CLIFFORD MILLER
> Coborn House
> Coborn Road
> London E3 2DA
> England
>
> http://www.millercompany.demon.co.uk
>
> Tel: + 44 181 983 6688
> Fax: + 44 181 983 6699
>
> _______________________________________________________________________________
>
>
>
> John Gledhill wrote:
>
> Yes, that's it in a nutshell.
> The students' answers are not data about them. The marks and
> comments
> are.
> qed
> So if they ask, they get the comments but not the exam
> answers that
> they relate to. Strange but true.
> John
> On Thu, 30 Sep 1999 09:45:34 +0100 [log in to unmask]
> wrote:
>
> > From: [log in to unmask]> Date: Thu, 30 Sep 1999
> 09:45:34 +0100
> > Subject: Exam scripts
> > To: [log in to unmask]
> >
> > It is the info recorded by candidates which is exempt from
> subject
> access
> > and at the conference we were given to understand that
> this did not
> extend
> > to scriptmarkers comments which seems rather ridiculous.
> Perhaps it
> could be
> > argued that if the exempted data is taken out, what is
> left is not
> personal
> > data. Rather tenuous but otherwise unworkable!?
> > Gail Waters
> > D.P. Coordinator.
> > Open University
>
> **************************************************************
>
> * From Dr John M Gledhill
> * personal email: [log in to unmask]
> * Academic Registrar, Coventry University,
> * Priory St. Coventry CV1 5FB, UK
> * phone 024 76 838336, fax 024 76 838311
> * (local calls 838336 until 22.4.2000, then 7688 8336)
> * for general University email use:
> [log in to unmask]
> **************************************************************
Query: If the marker in his comments restricts him/her self to the
substance/style/etc. of the work (i.e.,restrains oneself from the likes
of "This person needs remedial help.), and if the work itself is not
"personal data" (leaving aside "What I did on my holidays"), then how
can the marker's comments be personal data? They don't relate to a
person, or personal data, but to an exam answer.
--
Charles A. Prescott
Vice President, International Business Development
and Government Affairs
Direct Marketing Association
1120 Avenue of the Americas
New York, NY 10036
U.S.A.
Tel. (1) 212-790-1552
Fax. (1) 212-790-1499
e-mail: [log in to unmask]
website: www.the-dma.org
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