Tag Archives: definition of personal data

Exam scripts are partly personal data and other practical findings of the CJEU in Nowak

The Court of Justice of the European Union (CJEU) gave its judgment in Case C-434/16 Nowak on 20 December 2017, and it is significant from several points of view:

  • It provides a good summarized description of what constitutes “personal data”, referring to both objective and subjective information, regardless of its sensitivity, and it also details what the “related to” criterion from the legal definition of personal data means;
  • It *almost* departs from its YS jurisprudence on the concept of personal data;
  • It applies the interpretation that the Article 29 Working Party gave to the “related to” criterion in its Opinion on personal data from 2007, highlighting thus the weight that the interpretation of data protection law given by the European DPAs might have;
  • It establishes that written answers submitted by a candidate during an exam are personal data of the candidate (this is relevant for all education services providers);
  • It also establishes that the questions of the exam do not fall in the category of “personal data” – hence, not the entire exam script is considered personal data, but only the answers submitted by the candidate;
  • It establishes that the comments reviewers make on the margins of one’s written answers to an exam are personal data of the person being examined, while also being personal data of the reviewer;
  • It establishes that exam scripts should only be kept in an identifiable form only as long as they can be challenged.

This comment looks closer at all of these findings.

Facts of the Case

Mr Nowak was a trainee accountant who requested access to his exam script from the Institute of Chartered Accountants of Ireland (CAI), after failing the examination. He first challenged the results of the exam with no success. He then submitted a subject access request to the CAI, asking to receive a copy of all his personal data held by the CAI. He obtained 17 documents, but the exam script was not among them.

Mr Nowak brought this to the attention of the Irish Data Protection Commissioner (DPC) through an email, arguing that his exam script was also his personal data. The DPC  answered by email that exam scripts “would not generally constitute personal data”. Mr Nowak submitted then a formal complaint with the DPC against the CAI. The official response of the DPC was to reject the complaint on the ground that it is “frivolous or vexatious” (the same reason used to reject the first complaint of Max Schrems challenging the EU-US Safe Harbor scheme).

Mr Nowak then challenged this decision of the Irish DPC in front of the Circuit Court, then the High Court and then the Court of Appeal, which all decided against him. Finally, he challenged the decision of the Court of Appeal at the Supreme Court who decided to stay proceedings and send questions for a preliminary ruling to the CJEU, since the case required interpretation of EU law – in particular, how should the concept of “personal data” as provided for by EU Directive 95/46 be interpreted (a small procedural reminder here: Courts of last instance are under an obligation to send questions for a preliminary ruling to the CJEU in all cases that require the interpretation of EU law, per Article 267 TFEU last paragraph).

Questions referred

The Supreme Court asked the CJEU two questions (in summary):

  1. Is information recorded in/as answers given by an exam candidate capable of being personal data?
  2. If this is the case, then what factors are relevant in determining whether in a given case such information is personal data?

Pseudonymised data is personal data

First, recalling its Breyer jurisprudence, the Court establishes that, for information to be treated as personal data, it is of no relevance whether all the information enabling the identification of the data subject is in the hands of one person or whether the identifiers are separated (§31). In this particular case, it is not relevant “whether the examiner can or cannot identify the candidate at the time when he/she is correcting and marking the examination script” (§30).

The Court then looks at the definition of personal data from Directive 95/46, underlying that it has two elements: “any information” and “related to an identified or identifiable natural person”.

“Any information” means literally any information, be it objective or subjective

The Court recalls that the scope of Directive 95/46 is “very wide and the personal data covered … is varied” (§33).

“The use of the expression ‘any information’ in the definition of the concept of ‘personal data’ … reflects the aim of the EU legislature to assign a wide scope to that concept, which is not restricted to information that is sensitive or private, but potentially encompasses all kinds of information, not only objective but also subjective, in the form of opinions and assessments, provided that it ‘relates’ to the data subject.” (§34)

Save this paragraph, as it is a new jurisprudential source of describing what constitutes personal data – it is certainly a good summary, in line with the Court’s previous case-law (see an excellent overview of the Court’s approach to the definition of personal data here, p. 40 – 41). It makes clear that, for instance, comments on social media, reviews of products/companies, ratings and any other subjective assessments are personal data, as long as they relate to an identified or identifiable individual. This is also true for any sort of objective information (think shoe number), regardless of whether it is sensitive or private, as long as it relates to an identified or identifiable individual.

“Related to” must be judged in relation to “content, purpose or effect/consequences”

The condition for any information to be considered personal data is that it relates to a natural person. According to the Court, this means that “by reason of its content, purpose or effect, (it) is linked to a particular person” (§35). The Court thus applies the test developed by the Article 29 Working Party in its 2007 Opinion on the concept of personal data. Ten years ago, the DPAs wrote that “in order to consider that the data ‘relate’ to an individual, a ‘content’ element OR a ‘purpose’ element OR a ‘result’ element should be present” (2007 Opinion, p. 10).

The Court now adopted this test in its case-law, giving an indication of how important the common interpretation given by data protection authorities in official guidance is. However, the Court does not directly refer to the Opinion.

Applying the test to the facts of the case, the Court showed that the content of exam answers “reflects the extent of the candidate’s knowledge and competence in a given field and, in some cases, his intellect, thought processes, and judgment” (§37). Additionally, following AG Kokott’s Opinion, the Court also pointed out that “in the case of a handwritten script, the answers contain, in addition, information as to his handwriting” (§37).

The purpose of the answers is “to evaluate the candidate’s professional abilities and his suitability to practice the profession concerned” (§38) and the consequence of the answers “is liable to have an effect on his or her rights and interests, in that it may determine or influence, for example, the chance of entering the profession aspired to or of obtaining the post sought” (§39).

Comments of reviewers are two times personal data

The test is then applied to the comments of reviewers on the margin of a candidate’s answers. The Court showed that “The content of those comments reflects the opinion or the assessment of the examiner of the individual performance of the candidate in the examination, particularly of his or her knowledge and competences in the field concerned. The purpose of those comments is, moreover, precisely to record the evaluation by the examiner of the candidate’s performance, and those comments are liable to have effects for the candidate” (§43).

It is important to note here that complying with only one of the three criteria (content, purpose, effects) is enough to qualify information as “relating to” an individuals, even if the Court found in this particular case that all of them are met. This is shown by the us of “or” in the enumeration made in §35, as shown above.

The Court also found that “the same information may relate to a number of individuals and may constitute for each of them, provided that those persons are identified or identifiable, personal data” (§45), having regard to the fact that the comments of the examiners are personal data of both the examiners and the “examinee”.

Information can be Personal data regardless of whether one is able to rectify it or not

It was the Irish DPC that argued that qualifying information as “personal data” should be affected by the fact that the consequence of that classification is, in principle, that the candidate has rights of access and rectification (§46). The logic here was that if data cannot be rectified, it cannot be considered personal – just as exam answers cannot be rectified after the exam finished.

The Court (rightfully so) disagreed with this claim, following the opinion of the Advocate General and contradicting its own findings in Case C-141/12 YS (see a more detailed analysis of the interaction between the two judgments below). It argued that “a number of principles and safeguards, provided for by Directive 95/46, are attached to that classification and follow from that classification” (§47), meaning that protecting personal data goes far beyond the ability to access and rectify your data. This finding is followed by a summary of the fundamental mechanisms encompassed by data protection.

Data protection is a web of safeguards, accountability and individual rights

Starting from recital 25 of Directive 95/46 (yet again, how important recitals are! Think here of Recital 4 of the GDPR and the role it can play in future cases – “The processing of personal data should be designed to serve mankind”), the Court stated that:

“…the principles of protection provided for by that directive are reflected, on the one hand, in the obligations imposed on those responsible for processing data, obligations which concern in particular data quality, technical security, notification to the supervisory authority, and the circumstances under which processing can be carried out, and, on the other hand, in the rights conferred on individuals, the data on whom are the subject of processing, to be informed that processing is taking place, to consult the data, to request corrections and even to object to processing in certain circumstances” (§48).

The Court thus looks at data protection as a web of accountability, safeguards (reflected in technical security measures, data quality, conditions for lawful processing data) and rights conferred to the individuals.

In this case, not considering exam answers personal data just because they cannot be “corrected” after the exam would strip this information from the other web of protections, such as being processed on a legitimate ground, being retained only for the necessary period of time and so on. The Court does not phrase this finding this way, but it states that:

“Accordingly, if information relating to a candidate, contained in his or her answers submitted at a professional examination and in the comments made by the examiner with respect to those answers, were not to be classified as ‘personal data’, that would have the effect of entirely excluding that information from the obligation to comply not only with the principles and safeguards that must be observed in the area of personal data protection, and, in particular, the principles relating to the quality of such data and the criteria for making data processing legitimate, established in Articles 6 and 7 of Directive 95/46, but also with the rights of access, rectification and objection of the data subject, provided for in Articles 12 and 14 of that directive, and with the supervision exercised by the supervisory authority under Article 28 of that directive” (§49).

Furthermore, the Court shows that errors in the answers given to an exam do not constitute “inaccuracy” of personal data, because the level of knowledge of a candidate is revealed precisely by the errors in his or her answers, and revealing the level of knowledge is the purpose of this particular data processing. As the Court explains, “[i]t is apparent from Article 6(1)(d) of Directive 95/46 that the assessment of whether personal data is accurate and complete must be made in the light of the purpose for which that data was collected” (§53).

Exam scripts should only be kept in an identifiable form as long as they can be challenged

The Court further explained that both exam answers and reviewers’ comments can nevertheless be subject to “inaccuracy” in a data protection sense, “for example due to the fact that, by mistake, the examination scripts were mixed up in such a way that the answers of another candidate were ascribed to the candidate concerned, or that some of the cover sheets containing the answers of that candidate are lost, so that those answers are incomplete, or that any comments made by an examiner do not accurately record the examiner’s evaluation of the answers of the candidate concerned” (§54).

Also, the Court also admitted the possibility that “a candidate may, under Article 12(b) of Directive 95/46, have the right to ask the data controller to ensure that his examination answers and the examiner’s comments with respect to them are, after a certain period of time, erased, that is to say, destroyed” (§55).

Another finding of the Court that will be useful to schools, universities and other educational institutions is that keeping exam scripts related to an identifiable individual is not necessary anymore after the examination procedure is closed and can no longer be challenged: “Taking into consideration the purpose of the answers submitted by an examination candidate and of the examiner’s comments with respect to those answers, their retention in a form permitting the identification of the candidate is, a priori, no longer necessary as soon as the examination procedure is finally closed and can no longer be challenged, so that those answers and comments have lost any probative value” (§55).

The Court distances itself from the findings in C-141/12 YS, but still wants to keep that jurisprudence alive

One of the biggest questions surrounding the judgment in Nowak was whether the Court will follow AG’s Opinion and change it’s jurisprudence from C-141/12 YS.  In that judgment, the Court found that the legal analysis used by the Dutch Ministry of Immigration in a specific case of asylum seekers is not personal data, and the main reason invoked was that “[i]n contrast to the data relating to the applicant for a residence permit which is in the minute and which may constitute the factual basis of the legal analysis contained therein, such an analysis … is not in itself liable to be the subject of a check of its accuracy by that applicant and a rectification under Article 12(b) of Directive 95/46” (§45).

The Court further noted: “In those circumstances, extending the right of access of the applicant for a residence permit to that legal analysis would not in fact serve the directive’s purpose of guaranteeing the protection of the applicant’s right to privacy with regard to the processing of data relating to him, but would serve the purpose of guaranteeing him a right of access to administrative documents, which is not however covered by Directive 95/46.” Finally, the finding was that “[i]t follows from all the foregoing considerations … that the data relating to the applicant for a residence permit contained in the minute and, where relevant, the data in the legal analysis contained in the minute are ‘personal data’ within the meaning of that provision, whereas, by contrast, that analysis cannot in itself be so classified” (§48).

Essentially, in YS the Court linked the ability of accessing and correcting personal data with the classification of information as personal data, finding that if the information cannot be corrected, then it cannot be accessed and it cannot be classified as personal data.

By contrast, following AG Kokott’s analysis, in Nowak the Court essentially states that classifying information as personal data must not be affected by the existence of the rights to access and rectification – in the sense that the possibility to effectively invoke them should not play a role in establishing that certain information is or is not personal data: “the question whether written answers submitted by a candidate at a professional examination and any comments made by an examiner with respect to those answers should be classified as personal data cannot be affected … by the fact that the consequence of that classification is, in principle, that the candidate has rights of access and rectification, pursuant to Article 12(a) and (b) of Directive 95/46” (§46).

However, the Court is certainly not ready to fully change its jurisprudence established in YS, and even refers to its judgment in YS in a couple of paragraphs. In the last paragraphs of Nowak, the Court links the ability to correct or erase data to the existence of the right of accessing that data (but not to classifying information as personal data).

The Court states that: “In so far as the written answers submitted by a candidate at a professional examination and any comments made by an examiner with respect to those answers are therefore liable to be checked for, in particular, their accuracy and the need for their retention… and may be subject to rectification or erasure…, the Court must hold that to give a candidate a right of access to those answers and to those comments… serves the purpose of that directive of guaranteeing the protection of that candidate’s right to privacy with regard to the processing of data relating to him (see, a contrario, judgment of 17 July 2014, YS and Others, C‑141/12 and C‑372/12, EU:C:2014:2081, paragraphs 45 and 46), irrespective of whether that candidate does or does not also have such a right of access under the national legislation applicable to the examination procedure”.

After previously showing an ever deeper understanding of data protection in its Nowak judgment, the Court sticks to some of its findings from YS, even if this meant perpetuating a confusion between the fundamental right to respect for private life and the fundamental right to the protection of personal data: “it must be recalled that the protection of the fundamental right to respect for private life means, inter alia, that any individual may be certain that the personal data relating to him is correct and that it is processed in a lawful manner” (§57 in Nowak and §44 in YS). Lawful processing of personal data and the right to keep personal data accurate are, in fact, enshrined in Article 8 of the EU Charter – the right to the protection of personal data, and not in Article 7 – the right to respect for private life.

Obiter dictum 1: the curious insertion of “exam questions” in the equation

The Court also does something curious in these last paragraphs. It simply states, after the paragraphs sending to the YS judgment, that “the rights of access and rectification, under Article 12(a) and (b) of Directive 95/46, do not extend to the examination questions, which do not as such constitute the candidate’s personal data” (§58). The national court did not ask about this specific point. AG Kokott also does not address this issue at all in her Opinion. This might have been raised during the hearing, but no context is provided to it. The Court simply states that “Last, it must be said…” and follows it with the finding regarding test questions.

While it is easy to see that questions of a specific test, by themselves, are not personal data, as they do not relate with regard to their content, purpose or effect to a specific individual, the situation is not as clear when the questions are part of the “solved” exam sheet of a specific candidate. The question is: “Are the answers of the test inextricably linked to the questions?” Imagine a multiple choice test, where the candidate only gains access to his/her answers, without obtaining access to the questions of that test. Accessing the answers would be unintelligible. For instance, EPSO candidates have been trying for years to access their own exam sheets held by the EPSO agency of the European Union, with no success. This is exactly because EPSO only provides access to the series of letters chosen as answers from the multiple choice test. Challenges of this practice have all failed, including those brought to the attention of the former Civil Service Tribunal of the CJEU (see this case, for example). This particular finding in Nowak closes the barely opened door for EPSO candidates to finally have access to their whole test sheet.

Obiter dictum 2: reminding Member States they can restrict the right of access

With an apparent reason and referring to the GDPR, the CJEU recalls, as another obiter dictum, under the same “it must be said” (§58 and §59), that both Directive 95/46 and the GDPR “provide for certain restrictions of those rights” (§59) – access, erasure etc.

It also specifically refers to grounds that can be invoked by Member States when limiting the right to access under the GDPR: when such a restriction constitutes a necessary measure to safeguard the rights and freedoms of others (§60,§61), or if it is done for other objectives of general public interest of the Union or of a Member State (§61).

These findings are not followed by any other considerations, as the Court concludes with a finding that had already been reached around §50: “the answer to the questions referred is that Article 2(a) of Directive 95/46 must be interpreted as meaning that, in circumstances such as those of the main proceedings, the written answers submitted by a candidate at a professional examination and any comments made by an examiner with respect to those answers constitute personal data, within the meaning of that provision” (§62).

If you want to have a look at a summary of AG Kokott’s excellent Conclusions in this case and then compare them to the judgment of the Court, click here. The Court did follow the Conclusions to a great extent.

 

Advertisements

Exam scripts and examiner’s corrections are personal data of the exam candidate (AG Kokott Opinion in Nowak)

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)