The UK’s independent authority set up to uphold information rights in the public interest, promoting openness by public bodies and data privacy for individuals.

Does the exam script exemption apply even if students have not sat any exams?

Due to the coronavirus pandemic pupils may not be able to sit their exams. Instead, alternative assessment methods may be used to award grades. The ICO has received a number of queries about whether the exam scripts exemption will still apply in these unusual circumstances.

The answer is yes, the exam scripts exemption will still apply to the information used to award students’ grades. This means that you don’t have to provide a response to requests from students for information about their provisional grades, including the teacher assessments and/or rank orders, until after the results are published.

If you receive a request from a student before the official results are announced then the exemption allows for longer response times. The timeframe for responding to these requests is either:

  • within five months of receiving the request; or
  • within 40 days of announcing the exam results, whichever date is earliest.

Requests made after the results are announced need to be dealt with as a normal subject access request, i.e. within one month of receipt of the request (see the How long do we have to comply section in the Right of access guidance for more detail).

However, the ICO understands there may be delays during the pandemic. We have published a document setting out our regulatory approach during the coronavirus pandemic.

How does the exam script exemption apply to other assessments? Does it mean that we don’t have to provide information like teacher assessments/rank orders to students?

The exam script exemption does not exempt you from providing teacher assessments and/or rank orders to students. However, if you receive a request for this information before the official results are announced, you will have a longer time to respond to this request.

It is likely that you will receive subject access requests from students asking to see information about how their grades have been decided. This may include their teacher assessment and rank order and the evidence used to make these decisions such as previous results from mock exams/assignments/assessments, records of performance or an exchange of emails discussing a student’s provisional grade or teacher assessment.

The GDPR gives individuals a right to see information that is held about them unless an appropriate exemption applies. The exam script exemption applies to information that has been recorded by the students themselves during an exam or assessment. Therefore students do not have a right to get copies of their answers from mock exams or assignments used to assess their performance.

After results are issued, and subject to data protection and any other relevant legal considerations, schools/colleges may choose to proactively provide students with the information that has been used to decide their grades, regardless of whether they have received any subject access request(s). If a school or college decides to take this proactive approach they should be transparent about taking this step. The organisation should provide advance notification (wherever possible) that they are doing so and consider what additional information and guidance is provided so that students understand the context in which their final calculated result has been decided

What if the information requested could reveal something about another individual?

Some concerns have been raised that the disclosure of rank orders within small cohorts could reveal the rank orders of other students.

When disclosing information, whether that be proactively or in response to a subject access request, an organisation needs to consider if the information they are providing would reveal something about another individual. If so, then you need to think about whether it would be reasonable to disclose it rather than withhold it.

For example, if a student requests information about their rank order and it could reveal information about other students, you’ll have to decide whether it’s reasonable to disclose this information rather than withhold it. This will depend upon the specific circumstances – for example:

  • Disclosing to a student that they ranked first in the top grade is unlikely to disclose individual level information about the rest of the cohort. All it reveals is that the rest of the cohort ranked below them, rather than any other student’s rank position.
  • Disclosing the rank order may be an issue in particularly small cohorts (say 2 -3 people). Any requests received where a small cohort is concerned need to be looked at on a case by case basis – is it feasible to obtain consent from the other individuals to release the cohort information or is it reasonable to provide it without that consent? You’ll need to consider whether it’s fair to treat students differently in small cohorts, by refusing to release their rank order, when that information is available to students in larger cohorts.

See the ‘What should we do if the data includes information about other people?’ section in the right of access guidance for more detail).

Further information