Exam scripts are candidate's personal data, EU advocate general believes
A handwritten exam script, together with the examiner's comments, should be treated as personal data within the EU directive on data processing, according to the opinion of an advocate general at the EU Court of Justice.
Juliane Kokott gave her opinion in the case of Peter Nowak, a trainee accountant in Ireland, who submitted a data access request after failing one of his professional qualifying exams for the fourth time. After the professional body declined to release his exam script, he complained to the Data Protection Commissioner, who toiok the view that there had been no breach of the relevant legislation because the material over which Mr Nowak sought to exercise "a right of correction is not personal data to which [the legislation] applies".
Mr Nowak took court proceedings as far as the Irish Supreme Court, which referred to the Court of Justice the questions whether the script was capable of being personal data within the directive, and what factors were relevant in deciding the issue.
In her opinion Ms Kokott began by noting that the scope of the directive was very wide. The view that an exam script was not covered might be correct if the exam answers were regarded in isolation, since these were not liable to contain information related to an identified or identifiable individual.
"However," she continued, :"in every case, the aim of an examination – as opposed, for example, to a representative survey – is not to obtain information that is independent of an individual. Rather, it is intended to identify and record the performance of a particular individual, i.e. the examination candidate. Every examination aims to determine the strictly personal and individual performance of an examination candidate. There is a good reason why the unjustified use in examinations of work that is not one’s own is severely punished as attempted deception.
"Consequently, an examination script incorporates information about the examination candidate and is in that sense a collection of personal data.
"That this is the correct conclusion is also shown, moreover, in the fact that an examination candidate has a legitimate interest, based on the protection of his private life, in being able to object to the processing outside the examination procedure of the examination script ascribed to him. An examination candidate does not have to accept that his script can be disclosed to third parties or published without his permission."
Contrary to the Commissioner's position, the personal data was not confined to the marks awarded. With a handwritten paper, the handwriting contained additional information about a candidate: it could be used to determine whether another text was in the same writing, and therefore provide indications of identity.
The purpose of the right of access to personal data did not preclude this conclusion: classification as personal data "cannot be dependent on whether there are specific provisions about access to this information which might apply in addition to the right of access or instead of it. Further, neither can problems connected with the right of rectification be decisive in determining whether there exists personal data".
And she denied that the right of correction would be used to remedy errors in the script: "The purpose of an examination script is to determine the knowledge and skills of the examination candidate at the time of the examination, which is revealed precisely by his examination performance and particularly by the errors in the examination. The existence of errors in the solution does not therefore mean that the personal data incorporated in the script is inaccurate.
"However, rectification would be conceivable if it were the case that the script inaccurately or incompletely recorded the examination performance of the data subject" – for example if it was attributed to the wrong candidate, or part of it was lost.
A criticism that Mr Nowak did not use the procedure established for checking the examination result, but might be regarded as abusing the legislation, "would have to be dealt with using the provisions of the Data Protection Directive. In that regard, article 13 in particular comes to mind, which allows for exceptions to the right of access to be established to protect certain interests specified therein". She added that the General Data Protection Directive might clarify this when it comes into force.
"On the other hand, the mere existence of other national legislation that also deals with access to examination scripts is not sufficient to allow the assumption that the purpose of the directive is being misused."
The advocate general said it was not necessary to answer the question whether the examiner's corrections on the script were also personal data with respect to the candidate, but offered the view that, whether or not the examiner knew the identity of the candidate, "the purpose of comments is the evaluation of the examination performance and thus they relate indirectly to the examination candidate... Precisely because of that close link between the examination script and any corrections made on it, the latter also are personal data of the examination candidate pursuant to article 2(a) of the Data Protection Directive".
She added: "The possibility of circumventing the examination complaint procedure is not, by contrast, a reason for excluding the application of data protection legislation. The fact that there may, at the same time, be additional legislation governing access to certain information is not capable of superseding data protection legislation. At most it would be admissible for the individuals concerned to be directed to the simultaneously existing rights of information, provided that these could be effectively claimed."
The court will issue its decision at a later date. In most cases it follows the advocate general's opinion.