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The devil's in the detail
The Data Protection Act is surely a good thing, but it was not designed
with universities in mind. John Sutherland finds that using academic
information raises difficult questions
John Sutherland
Thursday February 05 2004
The Guardian
The wheel has come full circle. Thirty-five years ago an intrepid commando
of student rebels "occupied" the central offices of Warwick University.
Rifling the filing cabinets they discovered what awful things the
pinstriped gerontocrats were saying about them. The cry went up: "No secret
files!"
When the Data Protection Act (DPA) came into force on March 1 2000 that
mission was accomplished. Notionally at least, British universities now
operate in a utopian condition of full bureaucratic openness and candour.
Happy days. The secret file was, it would seem, a thing of the past.
The University of Exeter (a singularly well run institution) circulates a
leaflet - Data Protection: What's it all About? - to new members of
staff. The assumption, perhaps optimistic, is that older hands need no
instruction on the topic.
Exeter's leaflet is written in chatty sub-legal style. It outlines the
eight main principles of the DPA and has a "let's get down to brass tacks"
panel of FAQs.
Despite the reassuring tone ("It helps not to think of data protection (DP)
as a nasty legal trap") there remain a number of niggling anxieties for the
thoughtful academic.
Take, for example, the fifth DP principle: "Personal data processed for
any purpose or purposes shall not be kept for longer than is necessary".
Necessary, one deduces, implies "for the original purpose for which it
was gathered".
The Soham case revealed the dangers of file purging as Huntley's hidden
apprenticeship in pederastic rape and murder emerged. There are less
appalling, but nonetheless worrying, consequences of the "clean slate"
principle for universities.
My institution, UCL, has a remarkably full college archive going back to
the institution's origins in the reform movement of the 1820s. Before
taking up my chair I went back and looked at the files of my predecessors.
Their personal dossiers, and the comments on the unlucky candidates for the
post, were breathtakingly frank: "dull", "lacking in initiative", "second
rate", "brilliant but unstable". There were also details of personal
background, which it would now, I think, be criminal either to inquire
about or to store beyond immediate usefulness.
Does archival relevance come under the rubric of "necessary keeping"? I
suspect not. Librarians, particularly those curating historical documents,
will have to adjust their parameters.
The effects of the DPA are visible in university corridors and public
places insofar as it is now against the law to post examination results by
name. No longer will a student see a notice proclaiming they have a first.
It is a moot point as to whether even prizewinners' names can be
publicised, or "divulged".
Just as it was once impossible to find out what John Major's O-level
results were, it will be difficult to uncover what class of degree a prime
minister achieved if he or she graduated after 2001. Will employers be able
to check that CVs are correct?
This is another awkward thought arising from the Huntley case: what is the
point of a background check when the background is legally sealed or
legally erased? Will the DPA turn out to be a liars' charter? It probably
will.
The most perplexing aspects of the DPA are those which affect the exchange,
release and confidentiality of information. As always, hard cases will test
the new Act.
My department rejects around a dozen applicants for every one it accepts.
Will those rejected be able to argue the toss in future, on the basis of
the interviewers' notes? I think they will. One foresees hassle. And,
possibly, some justice at the end of it all.
The act draws a clear-cut line between personal data and sensitive data.
Literary studies (Is Orwell a radical socialist or an embryonic Neo-Con?
Discuss) tend to blur those lines.
One must, in future, be careful in choosing one's words when recording
comments on a student's performance; one must be careful of those points
where personal conviction blends into critical judgement.
Every student, by legal right, can make a subject access request via the DP
office. It costs £10 - a fee designed less to generate revenue than to
inhibit frivolous or nuisance applications.
If comments are negative ("this student has been lazy, inattentive, and -
frankly - dishonest about the amount of work he has done"), then would
they be actionable, or legally contestable?
They probably would. Of course, it is probable that few teachers will be
foolish enough to consign "frank" criticism to paper or any other storage
device. That, too, may be a good thing.
How free is one to circulate data? This seems very tricky. My department,
for example, has a students' progress system in which information about
students is exchanged between leaders of different seminars. If consigned
to paper, such information would, I think, be dubiously legal. Internal
data transfer is a potential minefield. What is "internal"?
The data transfer issue has further ramifications. Parents and guardians
are, in the future, going to pay much more for the university education of
their offspring. How long, one wonders, before - as in America - a second
mortgage is needed to put a child through college. (What is the "package"
at Harvard, $40,000 a year?)
And there is one thing about which the DPA is crystal clear. As the Exeter
FAQ puts it:
"Can we disclose information about a student to their relatives, and
guardians and to sponsors?" "No."
Can one give progress reports, then, to a grant-awarding ("sponsoring")
body, such as the British Academy? If so, how are parents, bleeding
themselves dry to put their child through university, different from the
BA? Is the school report to parents now a thing of the past, assuming the
pupil is 18 or over?
Much time, for the serving academic, is demanded by the "reference".
Increasingly, however, references are pointless. Why? Because they are so
bland. Why? Because referees are so careful about the consequences of what
they might say. As in the bad old days of the 1960s and the open reference
("No secret letters!") one typically gets off-the-record phone calls: "Tell
me, what is this person really like?"
It is hard for liberal institutions such as universities not to welcome a
liberal measure such as the DPA. Freedom of information is a good thing.
But the shoe fits awkwardly. It is clear that the framers of the Act were
thinking principally of data banks and the gathering of information about
citizens by financial institutions, credit-rating agencies, police,
employers, government departments - even supermarkets. Typically such
information is, in itself, as neutral as the term "data" suggests.
It is different for universities. They are typically in a critical or
judgmental relationship to their student populations.
When one writes a progress report it is not data, it is opinion. It is
not: "Where was he on February 2?" It is, rather: "I don't think he is
getting the hang of it, and I seriously doubt he will in time for the
examination." The DPA is, I think, weak on opinion.
Well, whether or not the shoe fits we will have to wear it. Even if it
means cutting off a toe or two. And I would advise getting hold of the
Exeter leaflet: it deserves this year's Booker Prize for bumf.
Copyright Guardian Newspapers Limited
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