"Lloyd M J B (ISaCS)" wrote:

Qn 1)

Just a thought. Would the marks and comments on the exam paper be personal data relating to the examiner

Could be (but remember these things are always subject to what a court decides, in the unlucky event anyone had to go that far).  Look at the definition of 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;'

The marks and comments might be considered to 'relate to' the examiner just as much to the student.  Whilst tempting not to do so, most academic institutions keep other records enabling the examiner to be identified.
 

Qn 2)

and consideration of the student's subject access request would have to take this into account?

Yes.  But that does not mean that disclosure can be refused.

The first question is whether the examiner can be identified from the information concerned and/or from information which the data controller reasonably believes is or is likely to come into the possession of the data subject making the request.

If the examiner cannot be so identified, disclosure cannot be refused.

If the examiner can be identified from the information concerned, that does not excuse a failure to disclose the remaining information which does not so identify the examiner.

Further, if the examiner can be identified from the information concerned, it is then a question of whether the examiner has consented to disclosure or whether disclosure is reasonable in all the circumstances notwithstanding the examiner's refusal of consent.

There are statutory tests of when it is reasonable to refuse disclosure.
 

 
Mike Lloyd
Assistant Head (Academic Support )
Information Systems and Campus Services
University of Glamorgan
Llantwit Road
Treforest CF37 1DL

Tel: 01443 482417        Fax: 01443 482426
email:  [log in to unmask]

> ----------
> From:         [log in to unmask]
> Reply To:     [log in to unmask]
> Sent:         Friday, October 1, 1999 11:10 am
> To:   [log in to unmask]; [log in to unmask]
> Subject:      Exam scripts - Personal Data Exempt - Marks Not
>
>
> 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
> __________________________________________________________________________
>
>
> 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

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>       *   Academic Registrar, Coventry University,
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>

From:

Clifford G. Miller
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