Victoria Cetinkaya, a senior policy officer from the Information Commissioner’s Office (ICO), recently attended a roundtable discussion held at Wright Hassall offices in Leamington Spa. The agenda was the data protection changes which came into effect on 25 May 2018 – the General Data Protection Regulation (GDPR).
The ICO is the UK’s independent body responsible for ensuring organisations meet their information rights obligations and so this was an ideal opportunity for schools to obtain clear and concise information about the GDPR directly from the regulator itself. This article provides a snapshot of some of the topics discussed and questions asked by the schools themselves.
What changed on 25 May 2018?
There was no “apocalypse” on 25 May 2018. Of course the GDPR came into effect from 25 May, however GDPR compliance is an ongoing journey. The key is to continue to keep recognising areas and managing risks for your school on a continual basis. A lot of the GDPR principles are already part of existing current data protection law so not everything will be new. There are some new requirements though – in particular the accountability principle, which will require schools to be able to demonstrate that they comply with the law.
What GDPR tools are available for schools to check they are GDPR compliant?
Further information including useful GDPR toolkits can be found on ICO’s website or the education section of the ICO's website.
Furthermore, on 23rd April 2018 the DFE published its data protection toolkit for schools.
Who is the “data controller” under GDPR?
The school as an organisation is the data controller, now referred to as the controller, not individual governors. The law applies to the organisation itself.
What happens if a school breaches the GDPR?
If you suffer a personal data breach and the result is a risk to peoples’ rights and freedoms, for example, a breach of financial details of parents, you should report this to the ICO within 72 hours of discovery, either using the ICO helpline or the ICO online reporting page.
Whilst of course the ICO cannot guarantee they will not use enforcement action, they will work with data controllers to help them to get GDPR right as far as possible. It is a myth that GDPR will automatically lead to huge fines – ICO is a proportionate regulator committed to guide, advise and prevent data breaches.
If the ICO is informed of a breach, the first step they will take is to understand what was in place at the school to prevent the breach from happening (e.g. school policies, procedures) If there is a clear record of what measures have been taken the ICO will act proportionately if something goes wrong and work with the school to agree what further steps and changes in practices are required – this does not always include a fine or other enforcement action.
Do all schools have to have a data protection officer (DPO)?
Independent schools must appoint a data protection officer (DPO) if the school’s core activities require large scale, regular and systematic monitoring of individuals (for example, online behaviour tracking); or consist of large scale processing of special categories of data or data relating to criminal convictions and offences.
If the school doesn’t feel that the above applies, then the decision not to appoint a DPO should be documented.
Independent schools can appoint a DPO if they wish, even if they aren’t required to. If they decide to voluntarily appoint a DPO you should be aware that the same requirements of the position and tasks apply had the appointment been mandatory.
For more information on requirements about DPOs, the ICO has published guidance.
Are fundraising activities for schools affected by the GDPR?
Yes. Fundraising is “direct marketing” and subject to the GDPR. However fundraising can be lawful under GDPR and the school may be able to satisfy the “legitimate interest” ground for holding personal data for certain fundraising activities. It should be noted however that there are further requirements under the Privacy and Electronic Communications Regulations if schools wish to contact parents, alumni and pupils via electronic methods such as email or SMS, or by telephone in some circumstances.
Questions a school should ask themselves include:
Is people’s data necessary to carry out this activity? Yes, the school needs to contact people to raise funds
Have we struck the right balance between the requirement of the school to market itself and the individual’s right to privacy?
Does that individual expect to hear from us in respect of fundraising? What privacy notice information have we provided them with?
Are we marketing and fundraising in a proportionate and reasonable way?
Do we have consent in place if we want to email, text or call people in the course of our marketing and fundraising activities?
Parent Teacher Associations (PTA) often carry out fundraising activities for their school, and collect its own personal data and use its own mailing lists. Is the PTA a data controller in its own right or is the school itself potentially liable for any data breaches by a PTA?
Schools should be clear about whether the PTA is part of the school, or whether it is a separate organisation – many are set up as separate charities.
If the PTA is a separate organisation, schools need to identify an appropriate lawful basis to share personal data, such as mailing lists, with the PTA. A data sharing agreement should be in place and the school should ensure that parents and any other data subjects are aware that their data is being shared, and for what purpose.
How does GDPR apply to children?
Children are seen as potentially vulnerable under the GDPR, and as a school you should take extra care to look after their personal data appropriately. Where privacy notices are directed to a child (for example, to secondary school children where they might be able to understand privacy notices, and the data processing they describe, for themselves), they should be written in a way the child can understand.
The age of consent of 13 as set out in the current draft of the Data Protection Bill applies in quite a limited and specific situation - where the controller offers an “information society service” to the child e.g. Facebook, Google Classroom, school intranet, on the basis of obtaining their consent. In these circumstances, if the child is under 13 it is necessary to obtain parental consent for that child to use the service.
That said, it is a myth that everything regarding data needs consent – this is not true, everything does not need consent if another lawful basis for processing can be relied upon, and you should seek further guidance on this. For example, keeping student exam result data does not require consent. The ICO has published guidance on identifying an appropriate lawful basis which can be found here.
Does GDPR prohibit teaching staff using their own mobile devices in school?
Not necessarily, though there are clear risks here that the school would have to address. The level of risk that any disclosure in the event of a breach would pose informs how secure data must be kept. Schools should have clear policies in place that set out whether, and how, staff can access the data they need to do their jobs. Staff should be provided with training on all policy procedures. If a teacher brings into school their own device (e.g. a phone or laptop) the school must ensure technical measures are in place to make sure data is secure and provide training to staff on those measures. Encryption is not necessarily required for all devices however mobile devices containing personal data should be encrypted. Schools should consider how the data can be controlled and protected in the event a member of staff loses or sells their device, or if they leave their employment at the school.
Alison Pearce is a Real Estate lawyer with Wright Hassall. She has specialist experience in the education sector advising schools and universities on real estate matters including freehold sales and acquisitions and leasehold matters.