A college that withheld examiners' comments from a student during a dispute over his tuition has breached the terms of the Data Protection Act, the information commissioner has ruled.
The Anglo-European College of Chiropractic, an associate of Portsmouth University, breached a key principle of the 1998 act when it repeatedly refused to hand over comments made by examiners on papers sat by failed student Philip Moroney. The compliance officer of the information commissioner has ordered the college to hand over the material, and Mr Moroney is considering legal action.
Mr Moroney has been in dispute with the AECC since he was forced to withdraw from a Pounds 6,000-a-year chiropractic degree in 2002. As part of his dispute, he made a data access request in November 2002 to obtain information the college held on him. He did not receive all the data he requested and made a complaint to the office of the information commissioner, which asked the college to provide a full list of material it had withheld from Mr Moroney.
In a letter to Mr Moroney on September 12 2003, the compliance officer wrote: "The majority of the examination papers (the college) has sent to this office contain examiners' comments and these comments should have been provided to you in response to your subject access request. It would appear that the college has failed to comply with the sixth data protection principle. This states that 'personal data shall be processed in accordance with the rights of the data subjects under this act'.
"It is unlikely, therefore, that the processing concerned has been carried out in compliance with the provisions of the Data Protection Act 1998."
The move sets a legal precedent. The act allows "data controllers" to withhold "information recorded by candidates during an academic, professional or other examination". But the compliance officer said: "This does not mean that the comments of examiners on those scripts can also be withheld."
Gabriel Donleavy, principal of the AECC, said: "Last week we sent the entire collection of annotated scripts that Mr Moroney had submitted and we still had here to Mr Moroney and advised the information commissioner that we had done so. Our obligation under the act was to supply him with examiners' comments rather than with the entire script, but we saw no reason to withhold the scripts themselves since comments in vacuo would be meaningless.
"It will be a matter for Mr Moroney to process those scripts further, for example by asking someone to remark them. But it is very hard indeed to see how a bona fide examiner could significantly enhance the marks, and we have been ready to go to court over the matter since it first began."