InfoLawUpdate - Parents Accessing Pupil’s Information
Burnetts' information law solicitor Natalie Ruane comments on the latest information law developments.
Parents Accessing Pupil’s Information
Depending on the type of school a pupil attends it appears to be a relatively unknown and overlooked fact that there are substantial differences as to whether a parent with parental responsibility can access a pupil’s educational record automatically.
If a pupil attends a state school, under the control of a local authority, a parent with parental responsibility will have the unequivocal right to request a pupil’s educational record by virtue of the Education (Pupil Information) Regulations 2005. After making a request to the school, the school will have 15 school days to provide a copy of the record to the parent. Under the Regulations the educational record is completely free of charge. Importantly, the Regulations give specific rights to parents to view the record and the child cannot prevent a parent from accessing their educational record as no consent from the child is required.
However, in stark contrast, the position is different in relation to ‘free schools, academies and independent schools’; all of which are not under the control of a local authority. Importantly, any request to access a pupil’s educational record who attends such a school is not covered by the Pupil Information Regulations. Parents of such pupils will need to make a subject access request for information under section 7 of the Data Protection Act 1998. Anyone with parental responsibility for their child can make the request. Unlike the situation with state schools written consent should be provided by the parent from the child before the educational record is released to the parent provided the child is mature enough and has the ability to understand their rights as the personal data belongs to the pupil and not the parent. There is no defined age for this in England and Wales but in Scotland the law presumes that a child of 12 or more has sufficient capacity. In effect, unlike the situation with state schools, the pupil can control the circumstances in which the educational record is released.
If no consent from the child is provided by the parent and there is no court order and nothing on file to say that the pupil does not want that parent to have information, the school should take into account, along with the circumstances of the case;
- the pupil’s level of maturity and ability to make decisions like this;
- the nature of the personal data requested by the parent;
- any duty of confidence owed to the pupil;
- any consequences of allowing those with parental responsibility to access the pupil’s information. This is particularly important if there have been allegations of abuse or neglect;
- any detriment to the pupil if the parent cannot access this information, and;
- any views the pupil has on whether the parent should have access to the information, if the pupil has a sufficient level of maturity and understanding.
In addition, another subtle difference dependent on the type of school is that requests under the Pupil Information Regulations 2005 to a state school will be a request for educational records only where as a data protection request can request all personal data held about the pupil.
This differing position gives “academies, free schools and independent schools” a certain degree of leeway in deciding whether a pupil’s educational record is disclosed to parents and, unlike the position with state schools, the parent will not always have an automatic right to obtain a copy of the record from the school.
About the author
Natalie is a Partner and leads the Employment Law & HR team and specialises in education.
Published: Tuesday 11th March 2014
Categorised: Information Law