Data privacy and release of exam results


Wesley Nyamache from Kanga High School, who attained an A of 84 points in the 2022 KCSE exams, is celebrated by family members at their home Gesabakwa village in Kisii on January 20,2022. PHOTO | ONDARI OGEGA | NMG


The government released the Kenya Primary School Education Assessment exam results for Grade Six quietly.

Last Friday, the Education Ministry announced the Kenya Certificate of Secondary Education (KCSE) examination results.

However, what does this mean when it comes to data protection and compliance?

Considering also Data Protection Act, 2019 and Data Protection (Registration of Data Controllers and Data Processors) Regulations, make it mandatory for providers of education services to be registered.

With the full implementation of the Data Protection regime in Kenya, it means that answers given by a candidate contained within an exam script or sheet constitute personal data of the candidate, as do the comments made by an examiner on an exam script regarding a candidate’s answer to a question.

This finding was echoed in the famous Peter Nowak vs. Data Protection Commissioner case.

And, if it concerns personal data about children, it is considered sensitive that is subject to extra safeguards.

Therefore, the release of examination results in the media is a frequent and recognised practice in Kenya, and the Data Protection Act does not prevent it.

Nonetheless, exam bodies and schools must act equitably when releasing results.

Where students have concerns about their information being published, such entities must take those concerns seriously.

They should ensure that all students and their parents or guardians are informed as soon as possible if and how examination results will be made public.

They should also clarify how the data will be presented, such as whether it will be arranged alphabetically or in grade order.

All the same, because exam bodies and schools have a legitimate reason for publishing examination results, pupils or their parents or guardians are not required to consent to publication.

If students/parents have a specific concern about the publication of results, they have the right to object. And, before deciding to publish, schools and exam bodies should examine such complaints.

And they’d have to have compelling reasons to reject someone’s objection to publishing their exam results.

Data subject access requests (higher learning)

What’s more, the data protection regime will usher in a new era in which students in Kenya will have the right to obtain key information about their exam results, and exam boards will be required to provide exam marks and comments, by the dint of data subject access request right, which gives one the right to see the information held about them.

Therefore, students particularly those unhappy with their results can submit requests in respect of their data to understand how their grade was reached by seeking additional information from their exam boards.

However, certain types of information will not be available such as access to copies of your exam answers or to have your paper re-marked.

Additionally, education providers will have to ensure that the way they process personal data is transparent and fair by informing students (and, where applicable,) staff about how their data has been processed, for what purpose(s), and, most importantly, with whom their data is shared.

In addition, the data protection laws require that all processing of personal data is limited to what is necessary.

That includes collection, sharing and deletion. Similarly, when sharing data, be careful to keep that sharing on a need-to-know basis.

Otherwise, your efforts may be overshadowed by illegal and unneeded data sharing.

All such processing must be undertaken within the identified lawful bases for processing — legitimate interests, for a public task or with consent.

Students have the right to have their grades correctly recorded. However, this does not include the right to appeal the grade.

Education providers must ensure that students’ data is correctly recorded.

Students may request that erroneous data be corrected but if this is inconsistent with evidence possessed by the education provider, the request may be denied.

To make a long story short, given the foregoing attitudes, we may expect a large rise in student engagement.

As a result, education providers must understand and be prepared to meet their obligations under the data protection framework.

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Note: The results are not exact but very close to the actual.