COVID-19: How to manage Subject Access Requests relating to academic grades


04 August 2020

Due to the impact of the coronavirus pandemic on schools, pupils have been unable to sit GCSE and A level exams this year. Instead of receiving grades based on their exam performance, those pupils will instead be awarded a grade based on a pupil assessment undertaken by their teachers.

The introduction of a new system at short notice may lead to higher numbers of pupils seeking to query their final grades. Schools should prepare themselves for pupils and parents seeking to use subject access rights under data protection laws to better understand the basis upon which final grades have been calculated.

Under normal circumstances when a Subject Access Request (SAR) is received in respect of a student's exam performance, the school must disclose the student's mark, any comments written by the examiner on the student’s exam script and the minutes of any examination appeals panels. Schools are not required to disclose exam questions or the student’s answers, as this information is exempt under the Data Protection Act 2018.

These rules have been adapted to accommodate the new grading system. Under the new system, if a school receives a SAR it must disclose:

  • the teacher assessment
  • written comments about the provisional grade and/or rank order; and
  • records of past performance.

The school is not required to provide the student’s answers to mock exams, assignments or assessments or details of the questions set.

If a school receives a SAR after grades have already been announced, it must respond within the standard statutory one-month period. If the SAR is received before the grade has been announced different deadlines apply to prevent subject access rights being used to force early disclosure of grades. In such cases, the school should respond within the earlier of:

  • five months of the date of the SAR; or
  • 40 days from the date on which the results are announced.

Whilst schools should note and apply the above approach when dealing with grade-related SARs, they should continue to follow the usual rules and procedures in all other respects. The following points are particularly pertinent to schools when dealing with grade-related SARS:

  • third party data that falls within the scope of a SAR should only be disclosed when the third party has given their consent to such disclosure or it is reasonable to disclose without consent. As a rule, it is likely to be reasonable to disclose comments and opinions given by teachers acting in their professional capacity but it is less likely to be reasonable to disclose the identity or personal data of external parties such as invigilators
  • students of 12 or older are generally expected to have sufficient understanding to exercise their subject access rights themselves although the Information Commissioner does advise that schools assess a student’s likely understanding based on their knowledge of the individual. If a SAR is made by the parent of a student with sufficient understanding to exercise subject access rights on their own behalf, the school should engage with the student to confirm that they are is happy for the parent to make the request on their behalf and for the response to be provided direct to the parent before proceeding. 

Full details of the Information Commissioner’s subject access request guidance can be found on its website.

SARs often arise as part of wider issues and our Education Disputes Team works with us to advise on strategic handling of these; contact Sara Sayer for more information on our Education Disputes offering.

If you require advice regarding a subject access request you have received please contact Kitty Rosser or Brett Butcher.

The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at August 2020.