The European Court of Justice’s Advocate General (AG) has said that Ireland’s Data Protection Commissioner (DPC) was wrong to have refused a student access to his failed exam paper.
In 2009, accounting student Peter Nowak requested acce ss to his accounting exam, having failed it. The Institute of Chartered Accountants (CAI) refused to release the script. Nowak approached the DPC who agreed with the CAI that the script didn’t constitute personal data because the exam was an open book test. She referred to the case as “frivolous and vexatious”.
Nowak filed a formal complaint with the DPC who refused to investigate further. After another failed motion at the Circuit Court, Nowak turned to the High Court who referred the matter to the European Court of Justice (ECJ) for advice.
An exam script is a test of a “strictly personal and individual performance” and therefore does constitute a collection of personal data.
As reported in the Irish Times, the ECJ’s AG Juliane Kokott agreed that the DPC was correct in saying that answers and solutions in an exam paper don’t constitute personal data, but that an exam script is a “documentary record that the individual has taken part in a given examination and how he performed”. Kokott noted that an exam script is a test of a “strictly personal and individual performance” and therefore does constitute a collection of personal data.
It’s worth noting that the AG’s view does not constitute a ruling and the ECJ is not compelled to share her opinion. The opinion is interesting however because it expands the notion of what constitutes personal data and opens up the prospect that exam boards will now have to apply data protection regulations to the processing of this data.