CJEU: Exam Answers and Examiner’s Comments are Personal Data

December 20, 2017

In Case
C-434/16 Peter Nowak v Data Protection
Commissioner (Ireland)
, the Data Protection Commissioner had turned
away Mr Nowak’s complaint relating to the refusal of order the Institute of
Chartered Accountants of Ireland to supply a corrected script of an examination at which he was a candidate, having
failed the examination for the fourth time. The
Data Protection
Commissioner’s position was that the
information contained in the exam script did not constitute personal data.

The following questions were referred to the CJEU by the Supreme Court of Ireland:

‘(1) Is information recorded in/as
answers given by a candidate during a professional examination capable of being
personal data, within the meaning of Directive 95/46?

(2) If the answer to Question 1 is
that all or some of such information may be personal data within the meaning of
the Directive, what factors are relevant in determining whether in any given
case such script is personal data, and what weight should be given to such

The CJEU answered as follows:

Article 2(a) of Directive 95/46/EC of the European
Parliament and of the Council of 24 October 1995 on the protection of individuals
with regard to the processing of personal data and on the free movement of such
data must be interpreted as meaning that, in circumstances such as those of the
main proceedings, the written answers submitted by a candidate at a
professional examination and any comments made by an examiner with respect to
those answers constitute personal data, within the meaning of that provision.

As the Court states at [41]-[44]:

‘As is stated by the
Advocate General in point 24 of her Opinion, the aim of any examination is
to determine and establish the individual performance of a specific person,
namely the candidate, and not, unlike, for example, a representative survey, to
obtain information that is independent of that person.

As regards the
comments of an examiner with respect to the candidate’s answers, it is clear
that they, no less than the answers submitted by the candidate at the
examination, constitute information relating to that candidate.

The content of those
comments reflects the opinion or the assessment of the examiner of the
individual performance of the candidate in the examination, particularly of his
or her knowledge and competences in the field concerned. The purpose of those
comments is, moreover, precisely to record the evaluation by the examiner of
the candidate’s performance, and those comments are liable to have effects for
the candidate, as stated in paragraph 39 of this judgment.

The finding that the
comments of the examiner with respect to the answers submitted by the candidate
at the examination constitute information which, by reason of its content,
purpose or effect, is linked to that candidate is not called into question by
the fact that those comments also constitute information relating to the