AG opinion in Nowak v Data Protection Commissioner

AG Kokott handed down an opinion in Nowak v Data Protection Commissioner on 20 July.

Mr Nowak was a trainee accountant in Ireland. He sought production of his accountancy exam scripts by way of a data access request. This was refused by the Institute of Chartered Accountants of Ireland. Mr Nowak’s further complaint to the Data Protection Commissioner was dismissed on the basis that the scripts simply contained solutions to hypothetical problems rather than information personal to the individual constituting “personal data”.

The AG’s opinion considered the Data Protection Directive (95/46/EC). She noted that although the Data Protection Commissioner’s position was correct per se (para 19), the definition of “personal data” in the Directive was very wide. In fact, on a proper analysis an exam script is “a documentary record that that individual has taken part in a given examination and how he performed” (para 21). Further, the purpose of an exam is to “identify and record the performance of a particular individual” (para 24). Thus, an exam script incorporates some element of personal data about a candidate. That would be the case even if the candidate’s name was not on the script but he/she were instead identified by a unique reference number or barcode (para 28).

The decision is available here: Nowak v Data Protection Commissioner