ECJ determines that exam scripts and examiner comments are personal data

The European Court of Justice (ECJ) has handed down its judgment in the case of Peter Nowak -v- Data Protection Commissioner following an application from the Irish Supreme Court for a ruling on a matter of data protection law concerning professional examination scripts and whether they contain a candidate’s personal data.

The questions for determination where:

1. Does an answer given by a candidate contained within an exam script constitute personal data? and,
2. Are the comments made on an exam script by an examiner the personal data of the candidate?

The ECJ answered yes to both questions. The content of the script reflected the individual’s knowledge and competencies in the subject matter being assessed. It also demonstrated the individual’s thought processes and judgement. The data collected would be used by the examining body to evaluate the individual. The evaluation made could have a significant impact on the individual, particularly in the context of a professional examination. Furthermore, the comments made by the examiner were the expression of an opinion on the candidate’s performance.

In finding that the script content and examiner’s comments constituted personal data, the ECJ determined that individuals may be able to engage their rights of access and rectification to review their personal data which are being processed by the examining body. This was on the basis that individuals have a right in law to ensure that their data is being processed fairly, lawfully, and without inaccuracies.

The ECJ clarified that the right to rectification could not be used to change an answer, but could be used to correct the scenario when an examiner had attributed another candidate’s response to the individual concerned.

The ECJ did, however, comment that the right of access and rectification did not extend to the question set for the exam, as it would not constitute personal data.

The judgment discussed deals with a professional examination. It does not expressly link the decision to public examinations, such as GCSEs and A Levels. The principles identified in the ECJ’s determination should have equal application when determining a pupil’s right to access their exam scripts under data protection law. Some examination boards charge for a request to have a script returned. If a pupil requests the script under data protection law, the determination in this case would mean the fee would be capped at £10 until the GDPR comes into force on 25 May 2018. The GDPR does not permit a standard fee to be applied when making a subject access request.

Schools can only request scripts under data protection law with the consent and authorisation of the pupils concerned. This could result in a significant saving whilst exam boards still choose to charge for copy scripts.

We have a wealth of expertise in advising on data protection and freedom of information matters, particularly in the education sector. We can assist any educational institution with their data protection/FoI needs.