COMMONS AMENDMENT (Hansard, 29 June 1984)

§ Lord Elton
My Lords, I beg to move that the House doth agree with the Commons in their Amendment No. 42 after Clause 33. This amendment allows data users who hold examination data an extended period with which to comply with the request for access to the data. Where a request for access is received before the results of the examination have been announced, the data user may delay responding to the request until 40 days after the announcement of the results except in cases where this is more than five months after the date of receipt of the request, in which case access must be granted at the end of five months. Where a data user takes advantage of the extended period for compliance with requests for access he must, when he finally grants access, reveal all the data which he has held during the period since he received the request, even if some of this has since been removed from the computer.
This amendment meets the concern which has been expressed by many examining bodies that the examination timetable would be seriously disrupted if they had to divert resources to dealing with subject access requests at the very busy time between completion of examinations and announcement of the results. The amendment will generally enable them to put requests for access to one side until the results have been announced but ensures that data subjects are not disadvantaged by users deleting data, such as unmoderated scores, which the subject would have been entitled to see had his request been complied with within the normal 40-day period. It is therefore fair to both subjects and users and I commend it to the House, and to the noble Lord, Lord Mishcon. I beg to move.

§ Lord Mishcon
My Lords, this is rather a fun amendment in many ways. by virtue of the fact that I am now told that the technical subject with which we are dealing is that of raw marks. There was a time when I could talk on behalf of my children but I can now talk on behalf of my grandchildren and tell your Lordships who are also in the same position of being grandparents that there are many occasions upon which grandchildren have described the marks they have recieved as raw marks. However, it is not this definition with which we are dealing today. It is the question of marks which are possibly preliminary marks and not final marks. Therefore, the right of access to these is a matter of obvious concern to examiners and might be of more obvious concern to students.
However, there is one point of clarification that the Law Society has sought on this matter. I have had an opportunity of giving notice of it to the Minister. I think it is going to be very much more brief if I read a paragraph of the letter addressed by the Law Society to the Home Office and then ask the noble Lord if he will kindly deal with it. The Law Society said in that letter: 1185 We were glad to see the new clause on examination marks which does appear to meet the problem of premature access to results. I had hoped, however, that the debate on the new clause would have clarified the relationship between sub-section (3)"— If I may pause for a moment in parenthesis, it is of course subsection (3) of amendment No. 42 now before us— and Clause 21(7)"— again I say in parenthesis, that that is Clause 21(7) of the Bill— so far as the question of raw marks is concerned but the point was not mentioned. It would seem that, apart from the new clause, clause 21(7) would permit the examining authority to withhold from subject access any items which were amended or deleted between the date of receipt of the request and the date when it is complied with provided the amendment or deletion would have been made regardless of the receipt of the request. However sub-section (3) of the new clause seems to require disclosure of items amended or deleted during the period between the request and the date of compliance, but only if compliance is more than forty days after the normal time limit. I am not sure whether I have got this right"— says the representative of the Law Society, if I may put that in parenthesis— or how exactly it will operate in relation to the moderation of raw marks. It would seem to depend in part on whether this is done by way of amendment to or deletion of data rather than addition to data and partly on how soon the results can be announced. I cannot help feeling that this is confusing for examining authorities and I wonder whether the opportunity could be taken to explain how the new clause is intended to operate in this respect when the House of Lords considers the Commons amendments to the Bill. Then he courteously says: I am sending a copy of this letter to Lord Mishcon in case he may wish to ask for clarification on this point". My Lords, I do.

§ Lord Elton
My Lords, how I sympathise with and recognise the sentiments expressed by his correspondent, in parenthesis. Subsection (3) is designed to ensure that data subjects are not unduly disadvantaged by having to wait more than the standard 40 days for a response to their request for access. Normally where a request for access is made access will have to be granted to the data as they stood when the request was received, except that the user may take account of any changes which he has made as a matter of course since receiving the request. In other words, the subject will probably get a copy of the data as they stood when the request is complied with, that is, at the time before the end of the 40-day period. Now where the examination data are concerned, there will be raw, unmoderated marks which will be recorded and possibly from time to time amended, deleted or added to the data. If the user were allowed, in effect, simply to grant access to the data as they stood at the time the request was complied with the subject might in fact be deprived of data which he would have received had his request been complied with within the normal 40-day period.
Subsection (3) therefore ensures that this cannot happen by saying that where the user takes advantage of the extended period within which to comply with a request for access he will be subject to a special regime which will require him to give the subject not only the data which he currently holds but also any data which he has held between receiving the request and complying with it. In practice, this means that he will have to keep a record of any changes or additions or deletions which are made, and will have to give all this 1186 data to the subject. This is, as it were, the cost of the special provision.