Judgment: 2020-07-01 · Court archive

Court of Appeal rejects Nowak’s claim to inspect original exam scripts

The court dismissed an appeal on whether data protection law entitled Peter Nowak to the original scripts, while leaving the lower-court costs orders in place and directing submissions on appeal costs.

Court of Appeal · [2020] IECA 174

Who, what, where, when and why

Who
  • Peter Nowak (Appellant)
  • The Data Protection Commissioner (Respondent)
  • The Institute of Chartered Accountants in Ireland
What

The court dismissed an appeal on whether data protection law entitled Peter Nowak to the original scripts, while leaving the lower-court costs orders in place and directing submissions on appeal costs.

Where

Places mentioned in the report

  • ICAI
When

Judgment:

Why

Reasons reported in the judgment

ICAI later confirmed that it held the original scripts. Its secretary also swore an affidavit confirming their retention, and the Circuit Court dismissed Nowak’s appeal. The Court of Appeal noted that the Circuit Court’s finding that the originals had not been destroyed was not contested on appeal and limited the issue accordingly.

The Court of Appeal dismissed Peter Nowak’s appeal over whether a data subject could require access to original examination scripts under the Data Protection Acts 1988 and 2003. The judgment, delivered by Mr Justice Haughton on 1 July 2020, concerned the second of two related appeals and addressed only the right to original documents on the facts before the court.

Nowak sat accounting examinations organised by the Institute of Chartered Accountants in Ireland (ICAI) in 2009 and failed. After ICAI declined his 2010 request for scripts and related material, he complained to the Data Protection Commissioner (DPC). In a second complaint in 2014, he alleged that original scripts had been destroyed after his access request. That allegation rested on his inference from a letter saying ICAI had retained a copy.

ICAI later confirmed that it held the original scripts. Its secretary also swore an affidavit confirming their retention, and the Circuit Court dismissed Nowak’s appeal. The Court of Appeal noted that the Circuit Court’s finding that the originals had not been destroyed was not contested on appeal and limited the issue accordingly.

Before the appeal reached the High Court, the Supreme Court and the European Court of Justice had ruled on related issues: whether an appeal could be brought against the DPC’s decision and whether examination scripts could constitute personal data. The parties then consented to orders setting aside the lower decisions on those points. The remaining issue before the High Court, and then the Court of Appeal, was whether access to personal data required the original script rather than a copy.

The Court of Appeal held that the access right required personal data to be communicated in an intelligible form, and that domestic law generally required a permanent copy of the information. It did not, on the facts of this case, require ICAI to provide or produce the original scripts for inspection. The court rejected Nowak’s reliance on possible manipulation or doctoring: there was no evidence of that before the DPC or the Circuit Court. It said the appeal did not decide whether original documents might be required in different circumstances, such as where evidence of manipulation existed.

ICAI had provided Nowak with copies in June 2018 and later offered controlled inspection of the originals; he did not take up that offer. The court did not decide whether the appeal was moot, but proceeded to determine the legal issue. It also declined to interfere with the High Court’s decision to make no order as to costs for the Circuit Court and High Court proceedings. As a further costs decision had not yet been made, the court directed the parties to seek agreement within seven days, with written submissions to follow if they could not agree. The judgment stated a preliminary view that the DPC should receive the costs of the Court of Appeal, subject to those submissions.

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