Data Protection
Technical Guidance Note
Access to pupils’ information held by schools in England
This guidance is aimed at state primary and secondary schools and Boards of
Governors to help them understand their responsibilities under the Data Protection Act
1998 (the Act) regarding requests for access to pupils’ information. Special schools
(see note 1) including those that are not maintained by the local education authority
are covered by this guidance. Local education authorities may also find it useful. The
note also covers the separate right of access that parents, have to access the official
educational records of their child.
What rights exist for access to a pupil’s personal information?
There are two distinct rights to information held by schools about pupils.
1 The subject access right – under the Act a pupil has the right to a copy of their own
information. In certain circumstances requests may be made by a parent on behalf
of their child.
2 Rights to the educational record – under the Education (Pupil Information)
(England) Regulations 2005, referred to here as the Regulations, a parent has the
right to access their child’s educational record.
Under the subject access right parents will only be able to see all the information
about their child when the child is unable to act on their own behalf or gives their
consent.
Who has responsibility for requests for information?
Under the Regulations, requests from parents to view their child’s educational record
should be dealt with by the Board of Governors. All other requests for personal
information from the pupil, or someone acting on their behalf, should be dealt with by
the school.
In practical terms this will make little difference in dealing with requests. However, it is
important that requests for personal information are passed to the appropriate person
as soon as possible after the request is received.
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The subject access right
Under the Act, a pupil, or someone acting on their behalf, has the right to access their
personal information held by the school.
Note 1 As defined by section 6(2) Education Act 1996
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This includes:
information held on computer (or other automated means);
information held in structured files;
information in the educational record regardless of the form in which it is held;
and
unstructured information, for example, held in loose correspondence.
It is likely that most pupils’ personal information will be held by a school as part of
pupils’ educational records. These are described in more detail below in the section
‘What is an educational record?’ However, there is a possibility that some pupil
information could fall outside this, for example, information provided by the parent of
another child.
Requests should be made in writing and the school is entitled to ask for any further
information reasonably required to locate the information and satisfy itself about the
identity of the person making the request.
A pupil is also entitled to be told whether or not the personal information they want is
held by the school, and to ask what that information is. They will also be entitled to a
description of the information, the purposes it is used for, who it is released to, and
any information available about the source of the information. The information must be
supplied in an intelligible form (so any codes should be explained) and should be in
hard copy unless it is not possible to do this or would involve a disproportionate effort,
or if the pupil or parent agrees to access the information in another form.
At what age can a child make their own subject access request?
The Act does not specify an age at which a child can make their own request for
access to their information. When a request is received from a child for access to their
own information, those responsible for responding should take into account whether:
the child wants their parent (or someone with parental responsibility for them) to
be involved in the request; and
the child properly understands what is involved in making the request and the
type of information they will receive.
As a general guide, a child of 12 or older is expected to be mature enough to
understand the request they are making. A child may, of course, be mature enough at
an earlier age or may lack sufficient maturity until a later age, and so requests should
be considered on a case-by-case basis.
When can a parent or other person make a general subject access request on
behalf of their child?
If the child cannot understand the nature of the request, someone with parental
responsibility can ask for the information on the child’s behalf and receive the
response. A child who understands the nature of an access request may ask an adult
to act on their behalf. Anyone can appoint an agent in this way and those responsible
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for responding should treat the agent's request as though it came from the child. If it is
not clear whether an adult has parental responsibility for the child or is acting as their
agent, then this should be clarified before responding to the request.
What happens if there is information about other individuals in the information
requested?
Where the response includes information about another individual, the request should
be considered carefully. There is a duty to consider the rights of the individual making
the request and the privacy of any other individuals who may be identified. For advice
on how to deal with general subject access requests containing information about
another individual, please see our guidance 'Subject access requests involving other
people's information'.
Can any other information be withheld?
There are two situations when information may be withheld. The first is when the
information is covered by an exemption in the Act (see (a) below). The second is when
the cost of supplying information held in an unstructured way would exceed the set
limits (see (b) below).
(a) The main exemptions when information may be withheld relate to:
information which might cause serious harm to the physical or mental health of
the pupil or another individual;
cases where the disclosure would reveal a child is at risk of abuse;
information contained in adoption and parental order records
information given to a court in proceedings under the Magistrates’ Courts
(Children and Young persons) Rules 1992;
copies of examination scripts; and
providing examination marks before they are officially announced.
If the information relates to exam marks and scripts, please see our guidance on
‘Individuals' rights of access to examination records’.
Please contact our office if you need detailed advice about how an exemption applies.
(b) Unstructured personal information.
The Act limits the action a school must take to respond to a request from a child, or
parent acting for them, for personal information held manually and in a completely
unstructured way. This needs to be distinguished from personal information held in
highly or partly structured files, such as a teacher’s own records with sections for
different classes and pupils, to which the normal rules of subject access apply.
Where the request is for unstructured personal information, schools are entitled to
ask for a description of the information to help them find it. They do not have to
supply the information, or confirm whether or not it exists, if it would cost more than
£450 to do either of these things. This cost structure is in The Freedom of
Information and Data Protection (Appropriate Limit and Fees) Regulations 2004.
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Guidance on this is available from the Department for Constitutional Affairs website
at www.foi.gov.uk/practitioner/feesguidance.htm
2
The parents’ right of access to their child's educational record
As stated earlier the Regulations give a parent their own independent right to a copy
of their child’s educational record.
What is an educational record?
The Regulations provide a legal definition of an ‘educational record’, (mirrored in
Schedule 11 of the Act with the addition of any statement of special educational needs
and any personal educational plan). The definition is wide and includes, regardless of
its form, any information about current and past pupils that is processed by or for a
school’s governing body or teacher. It includes a 'curricular record', defined as a
formal record of a pupil’s academic achievements, other skills and abilities and
progress in school.
The educational record is confined to information that comes from a teacher or other
employee of a local authority or school, the pupil or their parents. Communications
about a particular child from head teachers and teachers at a school and other
employees at an education authority will therefore form part of that child’s official
educational record, as will correspondence from an educational psychologist engaged
by the governing body under a contract of services. It may also include information
from the child and their parents, such as information about the health of the child.
Information kept by a teacher solely for their own use does not form part of the official
educational record.
How should a request be made?
A parent should make the request in writing to the Board of Governors.
Can any of the information in the educational record be withheld from the
parent?
Generally, any information that could not be disclosed to the child under the Act or to
which they child would not have a right of access under the Act should not be
disclosed to a parent exercising their independent right of access under the
Regulations.
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What are the timescales for dealing with requests?
Requests for information from pupils, or parents, for information that contains, wholly
or partly, an educational record must receive a response within 15 school days.
Unless a parent simply asks to see the official educational record under the
Regulations, schools and authorities are entitled to receive any fee first (see below).
Most requests for information are likely to ask for at least some information in the
educational record. However, should a subject access request be made just for
personal information outside the educational record, a response must be made
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promptly and at most within 40 calendar days. However, the 40 days does not begin
until after the fee (see below) and any further information about identity or the location
of the information is received.
4
Can a charge be made for accessing personal information?
If a pupil or parent acting on their behalf requests makes a subject access request for
personal information containing, in whole or part, the 'educational record', the amount
that can be charged depends on the number of pages provided. The fees work on a
scale basis as shown below.
Number
Maximum
of pages
fee
1-19 £1
20-29 £2
30-39 £3
40-49 £4
50-59 £5
60-69 £6
70-79 £7
80-89 £8
90-99 £9
100-149 £10
150-199 £15
200-249 £20
250-299 £25
300-349 £30
350-399 £35
400-449 £40
450-499 £45
500+ £50
If a pupil or parent acting on the pupil’s behalf makes a subject access request which
does not include any information from the educational record, the maximum fee which
can be charged is £10.
If a parent exercises their independent right under the Regulations simply to view the
educational record, then this should be free of charge. If a copy of the educational
records is supplied under the Regulations, a fee can be charged by the Board of
Governors. This fee must not exceed the cost of supplying the information.
More information
If you need any more information about this or any other aspect of data protection,
please contact us.
Phone: 01625 545745
E-mail: please use the online enquiry form on our website
Website: www.ico.gov.uk
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