In the recent case of Nowak v Ireland, the European Court of Justice (ECJ) decided that the examination script of a candidate for a professional examination constitutes ‘personal data’ for the purposes of the Data Protection Directive 95/46 (the directive).

After an appeal to a failed accountancy exam was rejected, Peter Nowak submitted a data access request under Section 4 of the data protection legislation, seeking all personal data relating to him held by the Institute of Chartered Accountants of Ireland (CAI). CAI disclosed a number of documents to Nowak in June 2010 but refused to disclose his examination script, on the ground that it did not contain personal data within the meaning of the data protection legislation.

Mr Nowak took an action against the Data Protection Commissioner, who had identified no contravention of the legislation. Although the courts initially dismissed Nowak’s challenge on the basis that there was no investigation to challenge and that the examination script did not constitute personal data, the Supreme Court held that an action against the DPC’s decision was admissible.

The Supreme Court, uncertain as to whether an examination script could constitute personal data within the meaning the Directive 95/46, decided to stay proceedings and to refer to the ECJ the questions of whether information recorded in or as answers given by a candidate during a professional examination capable of being person data within the meaning of the directive.

Confirming that examination scripts do constitute personal data, the ECJ highlighted situations in which the examination material may be inaccurate or incomplete, where scripts were mixed up or cover sheets lost, and stated that “the Court must hold that to give a candidate a right of access to those answers and to those comments, under Article 12(a) of that directive, serves the purpose of that directive of guaranteeing the protection of that candidate’s right to privacy.”

The ECJ stated that the scope of personal data is wide and varied, and that an examination script, as a documentary record that the individual had taken part in a given examination and of how they performed, was clearly information relating to a natural person.

The court noted that the content of the answers reflect the candidate’s knowledge and competence in a given field, their suitability to practice the profession concerned and that the use of that information is liable to have an effect on his or her rights and interests as it may determine or influence the chance of entering the relevant profession or of obtaining the post sought. Additionally, the script contains information relating to the candidate’s handwriting.