Data Protection Commissioner agrees to deal with accountancy trainee complaint over access to exam script

By Ann O'Loughlin

The Data Protection Commissioner has agreed before the Supreme Court to deal with a complaint by an accountancy trainee aimed at securing access to an exam script on grounds it constituted personal data.

The decision follows a nine-year legal battle by Peter Nowak, involving several hearings before the Irish courts and ultimately going to the European Court of Justice (CJEU), to have the Commissioner (DPC) address his complaint.

The DPC previously advised Mr Nowak that exam scripts “would not generally constitute personal data” and refused to hear his complaint about being refused access.

After the Circuit, High Court and Court of Appeal ruled Mr Nowak had no right to appeal the Commissioner’s decision, he went to the Supreme Court which referred issues to the Court of Justice of the EU.

In a judgment last December, the CJEU held that the written answers submitted by a candidate at a professional examination, and any comments by an examiner about those answers, constitute personal data within the meaning of the relevant EU data protection laws.

The CJEU said the fact that an examiner may not know the identity of the candidate whose script they are marking is irrelevant. It noted the scope of the personal data Directive is “very wide” and the personal data covered by it is varied.

File photo of exam papers locked up in a box.

The use of the words “any information” in the definition of the concept of personal data reflects the aim of the EU legislature to assign a wide scope to that concept, it said.

When the matter returned before the Supreme Court today, Paul Anthony McDermott SC, for the Commissioner, said it would consider the complaint afresh.

The Supreme Court ruled Mr Nowak was entitled to the costs of the appeal, to include the costs of the reference to the CJEU, less a €15,000 payment already made to him for his costs.

The case dates back to 2009 when Mr Nowak, a registered student with the Institute of Chartered Accountants of Ireland (CAI) asked to view his scripts for an accounting exam after failing it for the fourth time.

He had passed other exams apart from this one and sought the script with a view to challenging the result.

The CAI released 17 items but declined to release the exam script, saying it did not constitute personal data under data protection legislation.

Mr Nowak then applied to the DPC who advised him that exam scripts “would not generally constitute personal data”.

After he filed a formal complaint, the Commissioner refused to investigate the complaint, saying it was not sustainable on legal grounds and, in a technical sense, was frivolous and vexatious.

Mr Nowak appealed to the Circuit Court, which found he had no right to appeal the DPC's refusal. The High Court and Court of Appeal agreed with the Circuit Court, but the Supreme Court said it was not clear whether an exam script constitutes personal data and asked the CJEU for guidance.

Seven other EU member states, along with the European Commission, made submissions to the CJEU in the case.

KEYWORDS: court, peter nowak


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