Mr Justice Clarke agreed with the order proposed by Mr Justice O’Donnell in Peter Nowak’s appeal concerning whether an examination paper was personal data under the Data Protection Acts 1988 and 2003. The order included referring certain questions to the Court of Justice of the European Union.
In a judgment delivered on 28 April 2016, Clarke said he agreed with O’Donnell’s conclusion that an appeal could be brought from a decision by the Data Protection Commissioner that a complaint was frivolous or vexatious. He added that Nowak’s appeal raised essentially a question of law: whether his examination paper was personal data under the Acts. Clarke said the court could consider whether the Commissioner’s conclusion on that point was correct, even if the permitted appeal had a limited scope.
Clarke reserved a final decision on whether the test from Orange Communications Limited v. The Director of Telecommunications Regulation was the right test to apply. He noted that O’Donnell had left open whether the parameters of that test should be reconsidered, and said this case was not the appropriate one to resolve the broader question.
The judgment is a concurrence, not a separate final ruling on whether the examination paper was personal data. Clarke said his reservations did not change his agreement with the proposed order, including the referral to the Court of Justice.