The Advocate General had argued before the ECJ in her Final motions of July 20, 2017 to comment on the question of whether examination papers are to be regarded as personal data. The background to the case was a request by a candidate to the Irish professional organization of accountants/tax advisors (CAI), based on claims under data protection law, to be given access to an examination he had failed. The request was for information on all personal data stored about him by the CAI. The CAI refused to release the examination paper on the grounds that the examination paper was not personal data. Subsequently, this argument was protected by the Irish Data Protection Commissioner. The Supreme Court then came to the ECJ with the question of whether information recorded by an examination candidate in his answer or as an answer in a professional examination can constitute personal data within the meaning of the Data Protection Directive.
The Advocate General concluded that examination papers embody information about the examinee and consequently would constitute a “bundle of personal data.” In summary, the Advocate General stated:
- An examination paper documents the participation and performance of a specific person in this examination and aims to test a highly personal and individual performance of the examinee. Consequently, it not only contains information about the solution, but also links it to the person of the examinee.
- It does not matter whether the answers were written by the students themselves, determined during an open-book exam, or selected within the framework of a multiple-choice procedure.
- Even the fact that the work is marked with an identification number or bar code instead of the subject’s name does not change its qualification as an embodiment of personal data, since the subject can still be indirectly identified by the testing organization.
- If the examination answers were handwritten, the work practically constituted a writing sample that could at least potentially be used to indirectly identify the examinee. Handwritten examination papers consequently contained additional personal data.
Regarding the exercise of the right of rectification, the Advocate General stated that solution errors would not constitute inaccurate personal data because they would accurately reflect the knowledge and skills of the examinee at the time of the examination. However, a right of rectification would exist in the event that the examination paper incorrectly or incompletely documented the examinee’s performance.
The correction notes on the examination paper would also constitute personal data of the examinee, since they are intended to evaluate the examination performance, thus indirectly refer to the examinee and (in contrast to a short opinion) are inseparably linked to the paper. Furthermore, the correction notes would also constitute personal data of the examiner.