AG Kokott delivered her Opinion on 20 July in Case C-434/16 Nowak v Data Protection Commissioner, concluding that “a handwritten examination script capable of being ascribed to an examination candidate, including any corrections made by examiners that it may contain, constitutes personal data within the meaning of Article 2(a) of Directive 95/46/EC” (Note: all highlights in this post are mine).
This is a really exciting Opinion because it provides insight into:
- the definition of personal data,
- the purpose and the functionality of the rights of the data subject,
- the idea of abusing data protection related rights for non-data protection purposes,
- how the same ‘data item’ can be personal data of two distinct data subjects (examiners and examinees),
- what constitutes a “filing system” of personal data processed otherwise than by automated means.
But also because it technically (even if not literally) invites the Court to change its case-law on the definition of personal data, and specifically the finding that information consisting in a legal assessment of facts related to an individual does not qualify as personal data (see C-141/12 and C-372/12 YS and Others).
The proceedings were initially brought in front of the Irish Courts by Mr Nowak, who, after failing an exam organised by a professional association of accountants (CAI) four times, asked for access to see his exam sheet on the basis of the right to access his own personal data. Mr Nowak submitted a request to access all his personal data held by CAI and received 17 items, none of which was the exam sheet. He then submitted a complaint to the Irish Data Protection Commissioner, who decided not to investigate it, arguing that an exam sheet is not personal data. The decision not to investigate on this ground was challenged in front of a Court. Once the case reached the Irish Supreme Court, it was referred to the Court of Justice of the EU to clarify whether an exam sheet falls under the definition of “personal data” (§9 to §14).
Analysis relevant both for Directive 95/46 and for the GDPR
Yet again, AG Kokott refers to the GDPR in her Conclusions, clarifying that “although the Data Protection Directive will shortly be repealed by the General Data Protection Regulation, which is not yet applicable, the latter will not affect the concept of personal data. Therefore, this request for a preliminary ruling is also of importance for the future application of the EU’s data protection legislation” (m.h.).
The nature of an exam paper is “strictly personal and individual”
First, the AG observes that “the scope of the Data Protection Directive is very wide and the personal data covered by the Directive is varied” (§18).
The Irish DPC argued that an exam script is not personal data because “examination exercises are normally formulated in abstract terms or relate to hypothetical situations”, which means that “answers to them are not liable to contain any information relating to an identified or identifiable individual” (§19).
This view was not followed by the AG, who explained that it is incongruent with the purpose of an exam. “In every case“, she wrote, “the aim of an examination — as opposed, for example, to a representative survey — is not to obtain information that is independent of an individual. Rather, it is intended to identify and record the performance of a particular individual, i.e. the examination candidate” (§24; m.h.). Therefore, “every examination aims to determine the strictly personal and individual performance of an examination candidate. There is a good reason why the unjustified use in examinations of work that is not one’s own is severely punished as attempted deception” (§24; m.h.).
What about exam papers identified by codes?
In a clear indication that pseudonymized data are personal data, the AG further noted that an exam script is personal data also in those cases where instead of bearing the examination candidate’s name, the script has an identification number or bar code: “Under Article 2(a) of the Data Protection Directive, it is sufficient for the existence of personal information that the data subject may at least be indirectly identified. Thus, at least where the examination candidate asks for the script from the organisation that held the examination, that organisation can identify him by means of the identification number” (§28).
Characteristics of handwriting, personal data themselves
The AG accepted the argument of Mr Nowak that answers to an exam that are handwritten “contain additional information about the examination candidate, namely about his handwriting” (&29). Therefore, the characteristics of the handwriting are personal data themselves. The AG explains that “a script that is handwritten is thus, in practice, a handwriting sample that could at least potentially be used at a later date as evidence to determine whether another text was also written in the examination candidate’s writing. It may thus provide indications of the identity of the author of the script” (§29). According to the AG, it’s not relevant whether such a handwriting sample is a suitable means of identifying the writer beyond doubt: “Many other items of personal data are equally incapable, in isolation, of allowing the identification of individuals beyond doubt” (§30).
Classifying information as ‘personal data’ is a stand alone exercise (does not depend on whether rights can be exercised)
The Irish DPC argued that one of the reasons why exam scripts are not personal data in this case is because the “purpose” of the right to access and the right to rectification of personal data precludes them to be “personal data” (§31). The DPC is concerned that Recital 41 of Directive 95/46 specifies that any person must be able to exercise the right of access to data relating to him which is being processed, in order to verify in particular the accuracy of the data and the lawfulness of the processing. “The examination candidate will seek the correction of incorrect examination answers”, the argument goes (§31).
AG Kokott rebuts this argument by acknowledging that the classification of information as personal data “cannot be dependent on whether there are specific provisions about access to this information” or on eventual problems with rectification of data (§34). “If those factors were regarded as determinative, certain personal data could be excluded from the entire protective system of the Data Protection Directive, even though the rules applicable in their place do not ensure equivalent protection but fragmentary protection at best” (§34).
Even if classification information as “personal data” would depend in any way on the purpose of the right to access, the AG makes it clear that this purpose is not strictly linked to rectification, blocking or erasure: “data subjects generally have a legitimate interest in finding out what information about them is processed by the controller” (§39). This finding is backed up by the use of “in particular” in Recital 41 of the Directive (§39).
The purpose of processing and… the passage of time, both relevant for obtaining access, rectification
After clarifying that it’s irrelevant what an individual wants to do with their data, once accessed (see also the summary below on the ‘abuse of rights’), AG Kokott explains that a legitimate interest in correcting an “exam script”-related data is conceivable.
She starts from the premise that “the accuracy and completeness of personal data pursuant to Article 6(1)(d) must be judged by reference to the purpose for which the data was collected and processed” (§35). The AG further identifies the purpose of an exam script as determining “the knowledge and skills of the examination candidate at the time of the examination, which is revealed precisely by his examination performance and particularly by the errors in the examination” (§35). “The existence of errors in the solution does not therefore mean that the personal data incorporated in the script is inaccurate”, the AG concludes (§35).
Rectification could be achieved if, for instance, “the script of another examination candidate had been ascribed to the data subject, which could be shown by means of, inter alia, the handwriting, or if parts of the script had been lost” (§36).
The AG also found that the legitimate interest of the individual to have access to their own data is strengthened by the passage of time, to the extent that their recollection of the contents of their answer is likely to be considerably weaker a few years after the exam. This makes it possible that “a genuine need for information, for whatever reasons, will be reflected in a possible request for access. In addition, there is greater uncertainty with the passing of time — in particular, once any time limits for complaints and checks have expired — about whether the script is still being retained. In such circumstances the examination candidate must at least be able to find out whether his script is still being retained” (§41).
Is Mr Nowak abusing his right of access under data protection law?
AG Kokott recalls CJEU’s case-law on “abuse of rights” and the double test required by the Court to identify whether there had been any abuse of rights in a particular case (C-423/15 Kratzer and the case-law cited there at §38 to §40), which can be summed up to (§44):
i) has the purpose of the EU legislation in question been misused?
ii) is the essential aim of the transaction to obtain an undue advantage?
The DPC submitted during the procedure that if exam scripts would be considered personal data, “a misuse of the aim of the Data Protection Directive would arise in so far as a right of access under data protection legislation would allow circumvention of the rules governing the examination procedure and objections to examination decisions” (§45).
The AG considers that “any alleged circumvention of the procedure for the examination and objections to the examination results via the right of access laid down by data protection legislation would have to be dealt with using the provisions of the Data Protection Directive” and she specifically refers to the restrictions to the right of access laid down in Article 13 of the Directive with the aim “to protect certain interests specified therein” (§46). She also points out that if restricting access to exam scripts can’t be circumscribed to those exceptions, than “it must be recognised that the legislature has given precedence to the data protection requirements which are anchored in fundamental rights over any other interests affected in a specific instance” (§47).
The AG also looks at the exceptions to the right of access under the GDPR and finds that it is more nuanced than the Directive in this regard. “First, under Article 15(4) of the regulation, the right to obtain a copy of personal data is not to adversely affect the rights and freedoms of others. Second, Article 23 of the regulation sets out the grounds for a restriction of data protection guarantees in slightly broader terms than Article 13 of the Directive, since, in particular, protection of other important objectives of general public interest of the Union or of a Member State pursuant to Article 23(1)(e) of the regulation may justify restrictions” (§48).
However, it seems that she doesn’t find the slight broadening of the scope of exemptions in the GDPR as justifying the idea of an abuse of right in this particular case.
The AG also argues that “on the other hand, the mere existence of other national legislation that also deals with access to examination scripts is not sufficient to allow the assumption that the purpose of the Directive is being misused” (§49). She concludes that even if such misuse would be conceivable, the second limb of the “abuse of rights” test would not be satisfied: “it is still not apparent where the undue advantage lies if an examination candidate were to obtain access to his script via his right of access. In particular, no abuse can be identified in the fact that someone obtains information via the right of access which he could not otherwise have obtained” (§50).
Examiner’s correction on the exam script are the examinee’s personal data and his/her own personal data at the same time
The AG looks into whether any corrections made by the examiner on the examination script are also personal data with respect to the examination candidate (a question raised by some of the parties), even though she considers that the answer will not impact the result of the main proceedings (§52, §53).
It is apparent that the facts of this case resemble the facts of YS and Others, where the Court refused extension of the right of access to the draft legal analysis of an asylum application on the grounds that that did not serve the purpose of the Data Protection Directive but would establish a right of access to administrative documents. The Court argued in YS that such an analysis “is not information relating to the applicant for a residence permit, but at most information about the assessment and application by the competent authority of the law to the applicant’s situation” (§59; see YS and Others, §40). The AG considers that only “at first glance” the cases are similar. But she doesn’t convincingly differentiate between the two cases in the arguments that follow.
However, she is convincing when explaining why the examiner’s corrections are “personal data”. AG Kokott explains that the purpose of the comments made by examiners on an exam script is “the evaluation of the examination performance and thus they relate indirectly to the examination candidate” (§61). It does not matter that the examiners don’t know the identity of the examination candidate who produced the script, as long as the candidate can be easily identified by the organisation holding the examination (§60 and §61).
The AG further adds that “comments on an examination script are typically inseparable from the script itself … because they would not have any informative value without it” (§62). And it is “precisely because of that close link between the examination script and any corrections made on it”, that “the latter also are personal data of the examination candidate pursuant to Article 2(a) of the Data Protection Directive” (§63).
In an important statement, the AG considers that “the possibility of circumventing the examination complaint procedure is not, by contrast, a reason for excluding the application of data protection legislation” (§64). “The fact that there may, at the same time, be additional legislation governing access to certain information is not capable of superseding data protection legislation. At most it would be admissible for the individuals concerned to be directed to the simultaneously existing rights of information, provided that these could be effectively claimed” (§64).
Finally, the AG points out “for the sake of completeness” that “corrections made by the examiner are, at the same time, his personal data”. AG Kokott sees the potential conflict between the right of the candidate to access their personal data and the right of the examiners to protect their personal data and underlines that the examiner’s rights “are an appropriate basis in principle for justifying restrictions to the right of access pursuant to Article 13(1)(g) of the Data Protection Directive if they outweigh the legitimate interests of the examination candidate” (§65).
The AG considers that “the definitive resolution to this potential conflict of interests is likely to be the destruction of the corrected script once it is no longer possible to carry out a subsequent check of the examination procedure because of the lapse of time” (§65).
An exam script forms part of a filing system
One last consideration made by AG Kokott is whether processing of an exam script would possibly fall outside the scope of Directive 95/46, considering that it does not seem to be processed using automated means (§66, §67).
The AG points out that the Directive also applies to personal data processed otherwise than by automated means as long as they form part of a “filing system”, even if this “filing system” is not electronically saved (§69).
“This concept covers any structured set of personal data which is accessible according to specific criteria. A physical set of examination scripts in paper form ordered alphabetically or according to other criteria meets those requirements” (§69), concludes the AG.
Conclusion. What will the Court say?
The Conclusions of AG Kokott in Nowak contain a thorough analysis, which brings several dimensions to the data protection debate that have been rarely considered by Courts – the self-standing importance of the right of access to one’s own data (beyond any ‘utilitarianism’ of needing it to obtain something else), the relevance of passage of time for the effectiveness of data protection rights, the limits of the critique that data protection rights may be used to achieve other purposes than data protection per se, the complexity of one data item being personal data of two different individuals (and the competing interests of those two individuals).
The Court will probably closely follow the Conclusions of the AG for most of the points she raised.
The only contentious point will be the classification of an examiner’s corrections as personal data of the examined candidate, because following the AG will mean that the Court would reverse its case-law from YS and Others.
If we apply the criteria developed by AG Kokott in this Opinion, it is quite clear that the analysis concerning YS and their request for asylum is personal data: the legal analysis is closely linked to the facts concerning YS and the other asylum applicants and the fact that there may be additional legislation governing access to certain information (administrative procedures in the case of YS) is not capable of superseding data protection legislation. Moreover, if we add to this the argument that access to one’s own personal data is valuable in itself and does not need to satisfy other purpose, reversing this case-law is even more likely.
The only arguable difference between this case and YS and Others is that, unlike what the AG found in §62 (“comments on an examination script are typically inseparable from the script itself… because they would not have any informative value without it”), it is conceivable that a legal analysis in general may have value by itself. However, a legal analysis of particular facts is void of value when applied to different individual facts. In this sense, a legal analysis can also be considered inseparable from the particular facts it assesses. What would be relevant in classifying it as personal data would then remain the identifiability of the person that the particularities refer to…
I was never convinced by the argumentation of the Court (or AG Sharpston for that matter) in YS and Others and I would welcome either reversing this case-law (which would be compatible with what I was expecting the outcome of YS to be) or having a more convincing argumentation as to why such an analysis/assessment of an identified person’s specific situation is not personal data. However, I am not getting my hopes high. As AG Kokott observed, the issue in the main proceedings can be solved without getting into this particular detail. In any case, I will be looking forward to this judgement.
(Summary and analysis by dr. Gabriela Zanfir-Fortuna)