The Supreme Court has ruled that Peter Nowak could appeal a Data Protection Commissioner decision concerning access to his accountancy examination script. It also held that the Circuit Court should apply a defined review standard, but did not decide whether the script was personal data. Instead, it proposed referring that issue to the European Court of Justice (ECJ).
Mr Nowak, a trainee accountant, had failed the Strategic Finance and Management Accounting examination several times in 2008 and 2009. In May 2010, he asked the Institute of Chartered Accountants in Ireland (CAI) for all personal data it held about him. The CAI released 17 items but refused to provide his script, on the basis that it was not personal data. The judgment says the script was not disclosed to the Commissioner or any of the courts.
The Commissioner concluded that there had been no substantive breach of the Data Protection Acts and that the material sought was not personal data. The Circuit Court held that Mr Nowak could not appeal a decision that his complaint was frivolous or vexatious. It nevertheless considered the case on the assumption that an appeal was available and upheld the Commissioner’s view. The High Court and Court of Appeal upheld the Circuit Court’s decision.
In a judgment delivered by O’Donnell J on 28 April 2016, the Supreme Court held that the Commissioner’s decision was appealable under section 26 of the Acts. The court said the statutory appeal was not a full rehearing on the merits. It held that the Circuit Court should apply the standard set out in Orange Communications: whether, on the balance of probabilities, the decision was vitiated by a serious and significant error, or a series of such errors, taking the adjudicative process as a whole.
On the underlying data protection question, the Commissioner argued that the script contained answers to accountancy questions rather than personal information. Mr Nowak argued that the script was personal data, relying in part on its handwriting and on statutory provisions concerning examination results and scripts. The Supreme Court was not satisfied that the answer was clear under European Union law. It proposed referring questions to the ECJ and said the parties would have an opportunity to comment before submission.
The judgment therefore resolved the appealability and appeal-standard issues, but left the central question about the script’s status for the ECJ. It did not order disclosure of the script or make a final determination that it was personal data.