How schools should comply with Information Law

Paul Simpkins

IMS expert in law relating to Information Handling

Paul Simpkins is a former Teacher and currently a Director and Principal Speaker of Act Now Training which specialises in law relating to Information Handling.

Website: www.actnow.org.uk Email This email address is being protected from spambots. You need JavaScript enabled to view it.

Do The Data Protection Act & Freedom of Information Act in Education apply to you? It depends on who you are, where you are and how you are funded. A simple answer is that all schools in the UK have to comply with the Data Protection Act. It’s a reserved power.

Even this simple answer is complicated by whether you are a state funded school in Scotland in which case the work will be done for you by the local council.

In Scotland, state schools have a Parent Council which doesn’t have the status of a Board of Governors in England. Schools do not have to notify - the local council handles it. In England, the Board of Governors is responsible for compliance with all law not just information related law.

Private schools whether in the north or the south have to comply with the Data Protection Act. Whether you are a charitable trust or not the law applies to you.

Freedom of Information also has different regimes. In England, Wales & Northern Ireland the education sector comes under the scope of the Act. All schools will have to adopt a publication scheme and handle requests for information themselves.

Except private schools who are outside FOI. But including Academy schools who were brought in at the beginning of this year by the Academies Act 2010. The Act extends to England and Wales but only has application to England. While sections of the Act do technically extend to Wales, you can only establish an Academy in England, so it will have no practical impact in Wales.

Scotland has its own FOI regime and it applies to post 16 education. Any state funded schools who receive requests under the 2002 Act can re-direct the requests to their local council. They will manage the publication scheme and requests for access.

All private schools escape Freedom of Information - unless of course they interact with the state or the public sector in which case requests may be made to public bodies for details of that relationship.  

Clear? I thought so…

However all schools will be required to consider human rights issues such as the right to privacy and the very new Protection of Freedoms Bill which will become law at some stage which contains items of interest about fingerprinting in schools, CCTV, CRB.

Where to start? Let’s kick off with Data Protection.

Notification
It’s a legal requirement and there’s the possibility of a criminal offence if you don’t do it and maintain it. Normally it’s just a couple of hour’s work a year but you need to be able to prove you’ve done it if auditors or inspectors arrive. Never heard of it? Hmmm…

Data Processors
Do you allow anyone else to work on your school’s data? If so you need to have a contract in place and monitor that contract.

Privacy Notices
The DPA requires schools to provide an oral or written statement, known as a privacy notice, to pupils, parents and staff where they have collected and stored information about them. The primary aim of the notice is to inform an individual about the nature of the personal data that has been collected and stored by the school, and how it has been used. The privacy notice should also provide guidance, setting out how an individual may request access to the information held. Further information on privacy notices for pupils and for members of the school workforce can be found on the ICO website, which sets out the definition of ”privacy” notice along with detailed guidance. The Education Department's “model” privacy notice can be obtained from the Department's website.

CCTV and images



Do you hold images whether still or moving of individuals? You need to take account of this in your notification and in your Privacy Notice.

Do you hold images of children on smart cards? Do you allow use of cameras in school? Can you pass images of children or parents to the police? Is there a right of access to video?

Social media

Can staff & children say things about friends and colleagues in the blogosphere? Can you control this?

Can someone spoof a website that looks like your school website? Can you have defamatory material removed? Who is liable for any defamatory material emanating from your organisation’s computers?

There are other hot topics.

  • Fingerprinting in school
  • Use of email and internet
  • Cyber bullying

Maybe it’s time you carried out a review of how you comply with the Data Protection Act.

Onto Freedom of Information.

A survey in February 2011 by Action on Rights for Children has highlighted the need for increased awareness of the Freedom of Information Act in schools. The report found that of the 499 schools approached with a freedom of information request only 54% replied. Whilst higher than the previous year (25%) the results show that many schools have a poor grasp of the Act and often simply ignore any requests received.

Does it apply to me?

The simple answer is yes if you receive state funding but even if you are a privately funded school and deal with public bodies the details of your relationship with public bodies may be disclosable.

What are a school’s obligations under the Act?

Duty to publish
Duty to confirm or deny
Duty to advise and assist

What do these mean?

Put simply you should publish (make available in the school office or on your website) a list of documents you already publish that relate to key areas of your school. A template exists for you to work from. If you receive a request that falls under Freedom of Information you have to tell the requestor that you have what they ask for or tell them that you don’t. There will be more considerations later but the requestor has a right to know if you hold it. Finally if the request is unclear or badly phrased or in any way difficult to understand you have to go back to the requestor and help them make a ‘proper’ request.

Who can make requests? What can they ask for? Do you have to disclose?

The simple answers here are Anyone, Anything and it depends on the information.

Are there any times you can claim material is exempt from disclosure?

Fortunately there are a number of reasons why you sometimes can refuse to disclose. These are called exemptions and you will sometimes decide that what has been requested is exempt material. Quite a few of these however require you to undertake a Public Interest Test before deciding to refuse the request. All refusals must be in writing.

What happens if I get it wrong?

Look up Aberdare Girls School on the web to find out. It’s not pretty.

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