The draft regulations apply to a pupil’s "educational record". This term is defined in Regulation 3. Unfortunately, the definition is far wider than it requires to be and appears to have potentially far reaching consequences which cannot have been intended by the Executive.

The problems arise because the definition is based upon the source of the information, rather than by reference to its purpose. Of particular concern is the provision that the term "educational record" includes information originating from any employee of the responsible body [Reg. 3(2)(b)]. "Responsible body" is defined by reference to Section 6 of the Education (Disability Strategies and Pupils’ Educational Records) (Scotland) Act 2002, which provides that the responsible body in relation to a school managed by an education authority is that education authority. Section 135 of the Education (Scotland) Act 1980, however, defines "education authority" as simply being the council for that area.

The effect of all this is that the term "educational record" encompasses almost all council records relating to people who are at school or have previously attended school in that area including, for example, social work records, housing records, council tax records, employment records etc.

It cannot have been the Executive’s intention that these should be the subject of a parental right of access. Moreover, it cannot have been their intention that these records be subject to the restriction contained in Reg. 4(1) that they only be used for the purpose of providing school education to that pupil.

A more purpose based definition, it is suggested, would be more suitable, so that only, for example information used or likely to be used for the purpose of providing school education or for ancillary purposes are covered.

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The requirement [Reg 4(1)] that educational records only be used for the purpose of providing school education may lead to difficulties where the responsible body has legitimate cause to use such information for other purposes. For example, can it be said that using information with regard to a hearing before the educational appeal committee (especially with regard to the exclusion of a pupil) or before the Children’s Hearing are "for the purpose of providing school education"? This restriction may not be required if the definition of educational record is altered as suggested above, particularly in view of the restrictions on the use of personal data imposed by the Data Protection Act 1998, which applies here.

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Reg 4(2) should be amended to clarify that what is meant is "at least five years". It may be legitimate in some circumstances to retain such records for longer periods e.g. where legal action is anticipated or ongoing. Existing safeguards in the Data Protection Act 1998 will ensure that personal data is not kept for longer than is necessary.

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Given the wide definition of "parent" which includes e.g. estranged parents with whom the child wishes no contact, it would seem that some mechanism should be available to allow the child to object to their personal information being disclosed to a parent. In addition, there is no mechanism to allow enforcement of the parent’s right in the event of non-compliance by a responsible body or in the event of disagreement over whether a reasonable time has elapsed between requests or whether information relating to the identity of the person making a request is reasonably required.

All of this is in conflict with the principles established by the Data Protection Act 1998 in relation to control over and access to personal data.

Reg. 6 excludes the application of the regulations where the information which is sought is "sensitive personal data". While it is recognised that the child’s sensitive personal data needs to be adequately protected, it is also thought that this provision frustrates the purposes of the regulations to a large extent and that concerns could be adequately dealt with by use of a mechanism allowing the child to object to supply of their personal data, as suggested above.

Indeed, it is to be expected that the information most sought after by parents may include "sensitive personal data". For example, "sensitive personal data" includes information relating to the child’s health or medical condition and this would mean that the child’s psychological assessments, individual educational programmes and so on would require to be withheld from parents. Also potentially excluded would be information relating to an exclusion or bullying where e.g. an assault had been alleged, as this would constitute sensitive personal data.

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