The High Court affirmed a Circuit Court decision that it had no jurisdiction to hear Peter Nowak’s appeal over the Data Protection Commissioner’s refusal to investigate his complaint about access to an accountancy examination script.
In a judgment delivered on 7 March 2012, Mr Justice Birmingham held that an appeal under the Data Protection Acts 1988 and 2003 was available only after the Commissioner had investigated a complaint and reached a decision on it. The Commissioner had instead declined to investigate, having concluded that no substantive breach remained to be examined. The High Court therefore agreed that the Circuit Court could not hear the appeal.
Nowak, a student with Chartered Accountants Ireland (CAI), had sat an examination on 7 October 2009 and was unsuccessful. In May 2010, he requested his personal data from CAI, including a copy of his examination script and records relating to his appeal against the result. CAI supplied a substantial volume of material but withheld the script, saying it had received legal advice that the Data Protection Acts did not cover it.
Nowak complained to the Commissioner. In a letter dated 21 July 2010, the Commissioner said no substantive breach had been identified and that the complaint would not be investigated. The Commissioner later told Nowak’s solicitors that the complaint had been considered frivolous or vexatious and that the Acts did not provide a right of appeal in those circumstances. The Circuit Court reached the same jurisdictional conclusion in November 2010.
The High Court also addressed the script issue in case it was wrong about the Circuit Court’s jurisdiction. This was an alternative view, not the basis of the order. Justice Birmingham said a court hearing an appeal from the Commissioner would apply a deferential standard, allowing for the Commissioner’s specialist expertise. On the circumstances described, he considered the Commissioner entitled to conclude that the open-book script was not personal data under the Acts: it bore an examination number rather than Nowak’s name, and the judge said little personal information about him could be gleaned from it.
The court also said the Commissioner was entitled to regard the complaint as futile or misconceived once he had concluded that the script was not personal data. The High Court’s order was to affirm the Circuit Court decision of 16 November 2010. It did not order disclosure of the script.