Exam Grades

September 1st, 2021 by James Goudie KC

The Decision of the FTT in Ogazi v Information Commissioner, EA/2021/0078, concerns a Freedom of Information Act (FoIA) Request made by a parent of a pupil to a School about the pupil’s GCSE exam grades in 2020. Due to Covid-19 the grades were assessed by schools rather than external examination.  The School provided anonymised information.  It declined to provide information in the format requested, which included the actual final grade for each student in the subject concerned. The refusal was upheld by the Information Commissioner and by the FTT.  This was on the basis of Section 40(2) of FoIA, personal data of third parties, the GDPR and its Data Protection Principles, and the Data Protection Act 2018 definition of “personal data”.  The Decision is of interest both byway of reiteration of the principles to be applied and as to the application of those principles to the facts.

The first question was whether the requested information was personal data or information not in relation to identifiable individuals.  The FTT concluded that the information was personal data. It said:-

“20.   We accept that the appellant’s intention is requesting the data was not to identify individual students. However, disclosure under FOIA is disclosure to the world at large. We accept the School’s position that students may share assessment grades with each other and their parents. They may also have general knowledge about how some members of the class are doing and so be able to work out other students’ grades, including where marks have been announced in class.

  1. We agree with the Commissioner that disclosure of unrandomised information in the format requested by the appellant could allow identification of some of the students. This is particularly the case for the lower and higher achievers in the class, where a set of particularly high or low grades could be linked more easily with an individual student who is known to be a high or low achiever.  We accept that the appellant does not wish to identify individual students. But, disclosure of the data in the format requested would potentially allow identification of the grades of individual students by the appellant, his son, other students, or others connected with those students. Trial exam grades, predicted grades and actual grades are clearly personal academic information. We accept that individual exam predictions and results are personal information which many students would wish to keep private. We therefore find that the information requested is personal data, because it is personal information that can be linked to individuals.”

The second question was whether there was a legitimate interest is making the FoIA Request.  The answer to that question was “Yes”.  The information might reveal inconsistencies that would support an appeal about the grade. There was a legitimate interest in ensuring that the School determined the students’ final grades consistently and in line with the guidance set out by Ofqual.  This was particularly relevant in light of the unusual circumstances around the awarding of GCSE grades in 2020.

This led to the third question. Was disclosure necessary for the purposes of those interests?  The FTT said:-

“27.   The test is whether disclosure was a “reasonable necessity”.  The appellant’s interests in the information are to establish any inconsistencies for the purposes of a possible appeal, and there are also wider interests in consistency in the context of how GCSE grades were awarded in 2020. We accept that the information provided by the School in an entirely randomised format does not allow any assessment of consistency to be made. We do not agree with the Commissioner that this randomised data was a less intrusive means of achieving the legitimate aims identified. However, it is clear that the information requested by the appellant would provide only a partial picture of how grades were awarded, as there was also a moderation and review process which looked at individual circumstances.  We therefore find that disclosure was not reasonably necessary for these purposes, because it would provide an incomplete picture and only further these interests in a limited way.”

That was sufficient to dispose of the case, but the FTT went on to consider the “balancing test” on the assumption that the test of necessity had been met, and the question whether, in the limited extent that disclosure would further legitimate interests, that outweighed the privacy rights of the children whose personal data would be revealed. The FTT observed that personal data relating to children if given specific protection under the GDPR, at Recital 38 and Article 6(f), and continued:-

“31.   … This means that the privacy interests of the students should be given additional weight in the balancing test. Individual students may not wish their assessment grades, predictions and final grades to be known publicly.  They would have no expectation that this would happen.  Disclosure under FOIA would cause distress to these students, particularly if they were low achievers and/or vulnerable, or may be challenged by other students about their grades.

  1. The appellant has said that it may benefit the economics students to find out if there were anomalies. Although the information would be of interest to some individuals, the requested information is incomplete and so not an accurate way of identifying anomalies.  The fact that this might benefit some students does not prevent disclosure from breaching the privacy rights of other students, which must be given particular weight because the students are children.
  2. We therefore find that disclosure of the information requested by the appellant under FOIA would be unwarranted because of the prejudice to the privacy rights of the children involved.
  3. We uphold the Commissioner’s decision that the School was entitled to rely Section 40(2) FOIA (personal data) to withhold the requested information and we dismiss the appeal.”

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