This specific question has been referred by the Supreme Court recently to the European Court of Justice in the case of Nowak v Data Protection Commissioner. The case concerned whether a person’s handwriting could be considered “personal data”, and therefore falls within the scope of the Data Protection Acts 1988 – 2003 (the “Acts”).
Peter Nowak, a trainee accountant, had sat his first level accountancy exams set by the Institute of Chartered Accountants in Ireland (“CAI”) and had sat three of four of the second level exams. Having failed the Strategic Financial and Management Accounting exam a number of times, Mr Nowak took steps to appeal his result, culminating in a request for all his personal data held by the CAI. Mr Nowak was provided with personal date, but importantly not provided with his examination scripts and this is the key issue of contention in this case.
Mr Nowak appealed to the Office of the Data Protection Commissioner (“ODPC”), who advised that as there was no contravention of the Acts, the ODPC was not obliged to investigate the complaint. Mr Nowak appealed the ODPC’s decision to the Circuit Court, the High Court and finally the Supreme Court. Mr Nowak argued that his exam scripts are personal data, as they contain his handwriting which he contends is biometric data and thus falls within the ambit of the Acts and should therefore be released to him.
Mr Nowak contented that as exam results are specifically dealt with in the 1988 Act (section 10 (6)(a)), that this implicitly recognises that an examination result is personal data and accordingly the raw material from the exam, the handwritten transcript, must be personal data.
Mr Nowak also argued that by looking to the equivalent legislation in the UK, the Data Protection Act 1998, there is an express provision which states that;
“Personal data consisting of information recorded by candidates during an academic professional or other examination are exempt from section 7.”
Mr Nowak argues that as the UK decided to expressly exempt this data in their act, it inferentially suggests that examination data can be considered personal data.
The Supreme Court held that the issue cannot be said to be acte clair and thus, the question, of whether handwriting is personal data, has been referred to the European Court of Justice for consideration.
Details of the case can be found here. We will provide updates as the case progresses.