[Summary: some preparatory notes for a response to the National Pupil Database consultation]
The Department for Education are currently consulting on changing the regulations that govern who can gain access to the National Pupil Database (NPD). The NPD holds detailed data on every student in England, going back over ten years, and covering topics from test and exam results, to information on gender, ethnicity, first language, eligibility for free school meals, special educational needs, and detailed information on absences or school exclusion. At present, only a specified list of government bodies are able to access the data, with the exception that it can be shared with suitably approved “persons conducting research into the educational achievements of pupils”. The DFE consultation proposed opening up access to a far wider range of users, in order “to maximise the value of this rich dataset“.
The idea that government should maximise the value of the data it holds has been well articulated in the open data policies and white paper that suggests open data can be an “effective engine of economic growth, social wellbeing, political accountability and public service improvement.”. However, the open data movement has always been pretty unequivocal on the claim that ‘personal data’ is not ‘open data’ – yet the DFE proposals seek to apply an open data logic to what is fundamentally a personal, private and sensitive dataset.
The DFE is not, in practice, proposing that the NPD is turned into an open dataset, but it is consulting on the idea that it should be available not only for a wider range of research purposes, but also to “stimulate the market for a broader range of services underpinned by the data, not necessarily related to educational achievement”. Users of the data would still go through an application process, with requests for the most sensitive data subject to additional review, and users agreeing to hold the data securely: but, the data, including easily de-anonymised individual level records, would still be given out to a far wider range of actors, with increased potential for data leakage and abuse.
Consultation and consent
I left school in 2001 and further education in 2003, so as far as I can tell, little of my data is captured by the NPD – but, if it was, it would have been captured based not on my consent to it being handled, but simple on the basis that it was collected as an essential part of running the school system. The consultation documents state that ”The Department makes it clear to children and their parents what information is held about pupils and how it is processed, through a statement on its website. Schools also inform parents and pupils of how the data is used through privacy notices”, yet, it would be hard to argue this would constitute informed consent for the data to now be shared with commercial parties for uses far beyond the delivery of education services.
In the case of the NPD, it would appear particularly important to consult with children and young people on their views of the changes – as it is, after all, their personal data held in the NPD. However the DFE website shows no evidence of particular efforts being taken to make the consultation accessible to under 18s. I suspect a carefully conducted consultation with diverse groups of children and young people would be very instructive to guide decision making in the DFE.
The strongest argument for reforming the current regulations in the consultation document is that, in the past, the DFE has had to turn down requests to use the data for research which appears to be in the interests of children and young people’s wellbeing. For example, “research looking at the lifestyle/health of children; sexual exploitation of children; the impact of school travel on the environment; and mortality rates for children with SEN”. It might well be that, consulted on whether the would be happy for their data to be used in such research, many children, young people and parents would be happy to permit a wider wording of the research permissions for the NPD, but I would be surprised if most would happily consent to just about anyone being able to request access to their sensitive data. We should also note that, whilst some of the research DFE has turned down sound compelling, this does not necessarily mean this research could not happen in any other way: nor that it could not be conducted by securing explicit opt-in consent. Data protection principles that require data to only be used for the purpose it was collected cannot just be thrown away because they are inconvenient, and even if consultation does highlight people may be willing for some wider sharing of their personal data for good, it is not clear this can be applied retroactively to data already collected.
Personal data, state data, open data
The NPD consultation raises an important issue about the data that the state has a right to share, and the data it holds in trust. Aggregate, non-disclosive information about the performance of public services is data the state has a clear right to share and is within the scope of open data. Detailed data on individuals that it may need to collect for the purpose of administration, and generating that aggregate data, is data held in trust – not data to be openly shared.
However, there are many ways to aggregate or process a dataset – and many different non-personally identifying products that could be built from a dataset, Many of these government will never have the need to create – yet they could bring social and economic value. So perhaps there are spaces to balance the potential value in personally sensitive datasets with the the necessary primacy of data protection principles.
Practice accommodations: creating open data products
In his article for the Open Data Special Issue of the Journal of Community Informatics I edited earlier this year, Rollie Cole talks about ‘practice accommodations’ between open and closed data. Getting these accommodations right for datasets like the NPD will require careful thought and could benefit from innovation in data governance structures. In early announcements of the Public Data Corporation (now the Public Data Group and Open Data User Group), there was a description of how the PDC could “facilitate or create a vehicle that can attract private investment as needed to support its operations and to create value for the taxpayer”. At the time I read this as exploring the possibility that a PDC could help private actors with an interest in public data products that were beyond the public task of the state, but were best gathered or created through state structures, to pool resources to create or release this data. I’m not sure that’s how the authors of the point intended it, but the idea potentially has some value around the NPD. For example, if there is a demand for better “demographic models [that can be] used by the public and commercial sectors to inform planning and investment decisions” derived from the NPD, are there ways in which new structures, perhaps state-linked co-operatives, or trusted bodies like the Open Data Institute, can pool investment to create these products, and to release them as open data? This would ensure access to sensitive personal data remained tightly controlled, but would enable more of the potential value in a dataset like NPD to be made available through more diverse open aggregated non-personal data products.
Such structures would still need good governance, including open peer-review of any anonymisation taking place, to ensure it was robust.
The counter argument to such an accommodation might be that it would still stifle innovation, by leaving some barriers to data access in place. However, the alternative, of DFE staff assessing each application for access to the NPD, and having to make a decision on whether a commercial re-use of the data is justified, and the requestor has adequate safeguards in place to manage the data effectively, also involves barriers to access – and involves more risk – so the counter argument may not take us that far.
I’m not suggesting this model would necessarily work – but introduce it to highlight that there are ways to increase the value gained from data without just handing it out in ways that inevitably increase the chance it will be leaked or mis-used.
A test case?
The NPD consultation presents a critical test case for advocates of opening government data. It requires us to articulate more clearly the different kinds of data the state holds, to be be much more nuanced about the different regimes of access that are appropriate for different kinds of data, and to consider the relative importance of values like privacy over ideas of exploiting value in datasets.
I can only hope DFE listen to the consultation responses they get, and give their proposals a serious rethink.
Further reading and action: Privacy International and Open Rights Group are both preparing group consultation inputs, and welcome input from anyone with views of expert insights to offer.