 |
 |
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] %%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%%