The Irish Supreme Court recently asked the Court of Justice of the European Union (CJEU) to decide whether an exam script is personal data while deciding case Nowak v. Data Protection Commissioner.
Case begun when Peter Nowak on several occasions failed to pass exams to become a chartered accountant. He requested access to his exam paper but was rejected on the basis that exam paper did not constitute personal data. Mr. Nowak then submitted complaint to Data Protection Commissioner. The Commissioner refused to investigate his complaint on grounds it was not sustainable on legal grounds – exam scripts “would not generally constitute personal data” – and that Nowak’s complaint was “frivolous and vexatious”.
Mr. Nowak appealed the Commissioner’s decision to the Circuit Court which sided with Commissioner. He appealed that decision to the High Court which upheld the Circuit Court finding. Further appeals were made to Court of Appeal and eventually to Supreme Court.
Mr. Nowak argues that exam script is his personal data because:
- script contains his handwriting that is biometric data,
- it may contain comments and marks of the examiner that is his personal data.
Now it is up to CJEU to decide whether the exam script is or can be personal data and what factors are relevant and what weight should be given to them in determining whether it is personal data.