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

The Court of Justice of the European Union has ruled on a reference from the Supreme Court of Ireland and indicated that exam scripts and comments are available to the candidate

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 factors?’

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 examiner.’

Published: 2017-12-20T11:50:00

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