Accountancy exam paper dispute referred to EU court

The Supreme Court has unanimously agreed to ask the Court of Justice of the European Union (CJEU) to determine whether a man's accountancy exam paper counts as personal data.

Peter Nowak, a registered student with the Institute of Chartered Accountants Ireland (CAI), claims he is entitled to access his exam paper under the Data Protection Acts.

He had passed the CAI’s first-level accountancy exams and three of the second-level exams, but failed the strategic finance and management accounting exam on four separate occasions.

On the fourth occasion, during autumn 2009, he sought to challenge the result and submitted a data access request to the CAI seeking all personal data.

The CAI released 17 items but declined to release the exam script, saying it did not constitute personal data.

He then sought assistance from the Data Protection Commissioner, who advised that exam scripts “would not generally constitute personal data”.

The commissioner later refused to investigate his formal complaint as it was not sustainable on legal grounds and, in a technical sense, was frivolous and vexatious.

Mr Nowak appealed the commissioner’s decision to the Circuit Court, which found that no appeal lay from the commissioner’s determination.

Mr Nowak appealed that decision to the High Court, which upheld the Circuit Court finding.

Mr Nowak, who represented himself in court, argued he had a right of appeal and that the exam script constitutes personal data as it contains biometric data due to the fact that it is handwritten.

If the results of exams are considered personal data, as is provided for in the data protection legislation, then the “raw material” from which the result is derived and the comments and marks of the examiner can also be personal data, he argued.

The commissioner had argued that this was an “open book” exam paper containing answers to accountancy questions, and as such would not be expected to contain personal information.

Supreme Court decision

In its decision, the Supreme Court said the issue of whether the exam script was personal data should be referred to the CJEU.

The CJEU needed to address what factors are relevant, and what weight should be given to those factors, in determining whether the script is personal data, the Supreme Court said.

Delivering judgment on behalf of the court, Mr Justice Donal O’Donnell said the issue as to whether Mr Nowak had a right of appeal was “in fact a significant decision on the law relating to data protection” and was precisely the sort of issue that should be capable of appeal to a court of law.

The case was put back to June for the parties to consider the draft questions for referral to the CJEU and for the issue of costs to be decided.