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Note particularly in this section, as everywhere, that we are not laywers and nothing in this section or elsewhere is to be taken as legal advice.

2 The learner information which can be gathered and used

Locating information

In an ideal world, designing a new system, it will be clear, from the identified purposes of the designed information systems, what information is required, and therefore what information should be gathered to fulfill these requirements. In that case, it may be relatively straightforward to find the information, by determining who may be in a position to generate, keep or use it, and asking them where it is to be found.

Alternatively, it may be that the systems to be made interoperable have already been clearly identified, in which case referral to those who designed, or who maintain the system will probably reveal the information stored in them. It may still be worth casting the net wider, to see if there is any other potentially relevant information available.

In practice, one could take both these approaches. Where the systems have not yet been clearly identified, staff may be approached to ask about any information to do with students that they know about, that is recorded in any way. Such information may be on paper; it may be on the computers of individual staff members in a teaching or tutorial role; it may be held departmentally; or it may be in any central information systems of the institution: for instance a student record system, or student information system; a library system; a VLE or any e-learning system; a separate PDP system; an e-portfolio system; a system run by the careers department; and perhaps other systems that may not be networked.

Gathering and using the information

Just because it is available does not necessarily mean that it is possible, or right, to gather that information together or to use it for purposes other than the purpose it was originally intended for. Several factors need to be considered carefully, including:

• the natural ownership of the information;
• intellectual property including copyright;
• data protection.

Natural ownership

The subject of a record does not necessarily own that record. Indeed, most commercial, as well as educational organisations will have to keep records of their dealings with their customers and suppliers. Students are the customers of an educational institution, and it is therefore natural and proper that the institution keeps records of its dealings with students and these records are naturally owned by the institution. Those dealings may cover such matters as contact information; attendance; results of tests or examinations, both prior to and during enrolment; medical or disability information; records of monies paid or due; etc. The institution will probably have a policy on these kinds of record, which should have taken account of data protection or similar legislation.

It may well be that an individual has a right to see and correct (but not otherwise to alter) any such information - this will be governed by the detailed provisions of any data protection or freedom of information legislation. On the other hand, it could well be illegal to divulge such information to any third party without the explicit authorisation of, in this case, the student. Even with a student's consent, it may not be right to publish such information: for example, some research is done under an agreement about intellectual property and/or copyright involving a sponsoring company or body.

In contrast, students will naturally own their own work, or any material produced by them.

Intellectual property and copyright

It is clear that work produced by students is by default owned by them, but there may be exceptions to this. There may be contracts between students and sponsors, to the effect that the sponsor owns some of the student's work. Some work may be produced jointly, and therefore cannot be copied without the consent of all authors. The institution may have a policy about the intellectual property rights concerning work submitted for assessment towards a qualification. And lastly, while the students' input may be theirs, the learning materials themselves may be owned either by the institution, or some other provider. Just because students have used learning materials does not mean they have the right to take them away and treat them as theirs.

For work by students, possibly the most vulnerable and sensitive aspect of intellectual property will be secrecy or non-disclosure. This is sometimes a more important part of research than copyright, as it covers the ideas, rather than the way in which those ideas are expressed. Copyright, on the other hand, covers the particular form in which ideas are expressed, and may be important for larger works such as thesis dissertations, books, published papers, or substantial works of art.

There are other intellecutual property rights, including patents and trade marks, but on the surface these seem to be less likely to be as important.

Data protection

In the UK, the Data Protection Act 1998 incorporates eight fundamental principles. Principle 3 dictates that "Personal data shall be adequate, relevant and not excessive in relation to the purpose or purposes for which they are processed." Thus it may be reasoned that an educational institution should not, on its own account, gather and process personal information which is not relevant to education. When information is no longer needed, principle 5 dictates that "Personal data processed for any purpose or purposes shall not be kept for longer than is necessary for that purpose or those purposes." These two principles need particular consideration, while the other principles could be seen more as matters of proper care, respect and fairness.

What, then, if the institution wants to provide a service to a learner, using personal information, which is not part of its main business? In the area of PDP, this is quite plausible, as plans for personal development, records of experiences, skills and achievements, may potentially go far beyond what is part of the primary business of the educational institution.

One plausible approach to this is to consider the analogy with the role of a provider of internet services, allowing individuals to store whatever information they choose, about themselves, on their Web servers. It is worth thinking through the question of whether educational institutions could effectively adopt that role. This includes the question of whether they could then use that information for any other purposes at all (including educational) without permission, following principle 2, "Personal data shall be obtained only for one or more specified and lawful purposes, and shall not be further processed in any manner incompatible with that purpose or those purposes". It seems likely that they could not pass on such information to anyone else. And they would have to remember the duty of Data Protection principle 7: "Appropriate technical and organisational measures shall be taken against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data."

Just browsing through the Act, one comes across various interesting provisions and exemptions relating to education, including an exemption for confidential references. This is more evidence of the complexity of the Act, serving as more warning that legal advice is needed.

Implications

It should be clear from the preceding discussion how important it is to clarify the legal situation about storing and using information that has not previously been stored, or that is not normally understood to relate directly to education. The discussion on this page is only a stimulus to thinking, and legal advice will have to be sought at some point. We hope in due course to be able to point to some more authoritative advice as it emerges.

If you are a members of one of the JISC MLEs for Lifelong Learning projects, we are here to support you. For general and non-technical matters, please contact the Centre for Recording Achievement. For technical questions you may contact Simon Grant directly.

Please also send suggestions for additions or improvements to this page or site to Simon Grant.

Revised 2004-01-23 07:54:40