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Potential data protection challenges to A-level results

Posted on 13 August 2020

This article was last updated 14 August

A-level results for England came out on 13 August, in – as with so many things this year –  unprecedented circumstances.

The national framework (in England) for awarding grades this year involves the creation of a "calculated grade":

For each student, schools and colleges have provided a ‘centre assessment grade’ for each subject – the grade they would be most likely to have achieved had exams gone ahead – taking into account a range of evidence including, for example, non-exam assessment and mock results…exam boards are [then] putting all centre assessment grades through a process of standardisation using a model developed with Ofqual

Although Ofqual and others have evidently done much to try to ensure that results are as fair as possible, it is inevitable that there will be disappointed students (and parents), and subsequent challenges. Mishcon colleagues have previously written about the available appeals process, and, since then, specific guidance has been issued by Ofqual. In short, according to the guidance, an appeal to Ofqual can only be made by a school or college, and not by a student directly.

However, it is important to note that what this amounts to, is the processing of personal data, in a manner which has the potential to have significant effects on the future lives of students. The "process of standardisation" is, it seems, an algorithmic one, whereby a decision is reached by automated processing.

The Information Commissioner's Office (ICO) has reminded students that they have a right to access certain information from schools and colleges about exam results (and teacher assessments). This is the right under Article 15 of the General Data Protection Regulation (GDPR). Notably, however, the ICO has not made reference to the other data subject rights which are engaged, which include the Article 21 right to object, in certain circumstances, to processing, nor to the fact that Ofqual is certainly also a controller (as well as schools and colleges) for the purposes of GDPR.

Perhaps even more fundamentally than their right to access their data, data subjects have a right to have their data processed fairly and accurately (another way of putting this is that Ofqual have an obligation to process such data fairly and accurately). One notes, in this regard, that the Norwegian Data Protection Authority has recently indicated an intention to order the International Baccalaureate Organisation (IB) to redo the awarding of grades, on the grounds that

…the IB grades are inaccurate because they do not reflect the students’ individual academic level, which is the purpose of grading. Instead, the grades appear to be a prediction of what the students’ exam grades might have been had the exams not been cancelled, but this is not possible to accurately predict…[it] also considers that it is unfair to base grades on how other students at the same school have performed previously

Given the intense importance of exams, and the intense depth of feeling grades arouse even in "normal" times, it would hardly be surprising to see individual challenges not just to grades, but to the process by which they were arrived at. The ICO may well be asked to consider whether it takes a similar view on the process in England to that taken by its Norwegian counterpart.

It is also worth considering whether there are potential avenues of appeal directly under data protection law to Ofqual itself. Where a decision – even one authorised by law - has been made based solely on automated processing which produces legal effects concerning a data subject, or similarly significantly affects him or her, Article 22 of GDPR and section 14 of the UK's Data Protection Act 2018 work together to give the data subject the right to ask the controller either to reconsider the decision, or take a new decision that is not based solely on automated processing. One wonders whether these provisions might give pupils the right to approach Ofqual directly to reconsider or retake the decision.

Update on 14 August

The ICO has now issued a statement saying that "Ofqual has stated that automated decision making does not take place when the standardisation model is applied, and that teachers and exam board officers are involved in decisions on calculated grades". This appears at odds with the statement in Ofqual's "Privacy Impact Assessment", which states that the process does involve "automated elements as well as human elements". Whether this means that the Ofqual standardisation model did not involve "solely" automated decision making will no doubt be determined in the various legal challenges which are apparently currently being mounted.

Oddly, the ICO also says that concerns should be raised with exam boards first, before the ICO will get involved. This does not immediately appear to be in line with the ICO's obligation to handle complaints, under Article 57 of GDPR (which doesn't say anything about data subjects having to raise concerns with someone else first).
 

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