Question of whether examination scripts constitute personal data to be referred to European Court

About this case:

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Peter Nowak sat and passed the first level accountancy exams set by the Institute of Chartered Accountants in Ireland (CAI) but failed the Strategic Finance and Management Accounting exam several times.

He first attempted to challenge the decision, but changed tack and submitted a data access request under s.4 of the Data Protection Acts 1988 and 2003 (“the Acts”) seeking all “personal data” held by the CAI.

They released 17 documents, but declined to release his examination script on the basis that it was not considered “personal data” underneath the Acts.

Mr Nowak complained to the Data Protection Commissioner, who found that there had been no substantive contravention of the Acts, and stated that under section 10(1)(b)(i) of the Data Protection Acts, they were not obliged to investigate a complaint where no substantive breach of the Acts remains to be investigated.

The Court explained that s.10(1)(b)(i) of the Acts requires the Commissioner to investigate a complaint “unless he is of opinion that it is frivolous or vexatious”, and that the Office of the Commissioner had taken the view that if a complaint was not sustainable on legal grounds then it was, in a technical sense, both frivolous and vexatious, and that the office was not obliged to further investigate it.

Mr Nowak commenced an appeal against this decision with the Circuit Court, who found that a determination by the Commissioner was not open to an appeal, but could be subject to judicial review.

The Circuit Court judge also considered the position on the basis that, contrary to her determination, an appeal die lie. She applied the principles of Orange Communications Ltd v. The Director of Telecommunications Regulation and anor (No. 2) 4 I.R. 159, which found that a decision could be set aside if it had been reached by a serious and significant error or series of errors, having regard to the degree of expertise and specialised knowledge available to the decision maker.

She concluded that the examination script in this case was not personal data within the meaning of the Acts. Mr Nowak sought to challenge the Circuit Court’s decision.

The High Court upheld the decision of the Circuit Court judge on all points. The High Court judge agreed that a determination that a complaint was frivolous or vexatious could not be the subject matter of an appeal under s.26, but went on to consider the case on the basis that such an appeal lay, and also upheld the decision of the Commissioner.

The Supreme Court gave leave to appeal on two grounds which were certified to be of general public importance:

“(1) The Court of Appeal erred in law in holding the appellant was not entitled to appeal to the Circuit Court from the determination of the Data Protection Commissioner under s.26 of the Data Projection Acts 1988–2003;

(2) The Court of Appeal erred in law in holding that the Data Protection Commissioner was entitled to conclude that the examination script, the subject matter of the complaint, was not personal data within the meaning of the Acts.”

These were found to contain three issues:

(i) Whether an appeal lies under s.26 from a determination of the Data Protection Commissioner that a complaint is frivolous or vexatious;

(ii) If so, what test should the Circuit Court have applied on an appeal under s.26;

(iii) If an appeal lies, then applying the appropriate test, was the decision of the Data Protection Commissioner that the exam script was not personal data within the meaning of the Acts justified?

In relation to the first issue, the Commissioner argued that although s.26 contains reference to a decision, it should be given a particular interpretation, due to the construction of s.10, which meant that only decisions made after an investigation was conducted could be appealed.

However, the Supreme Court disagreed, finding that s.26 was unambiguous, and provided in clear and general terms for an appeal to the Circuit Court from the decision of the Commissioner. In ordinary language, the conclusion that a complaint is frivolous or vexatious was a decision.

This position was bolstered by considering the intention of the legislation as a whole, and European Directive 95/46/EC, to which the Acts gave effect.

It was found that an interpretation of the Directive which leads to the conclusion that a member of the public who made a complaint was only entitled to be informed of the outcome, and not to challenge it by appeal, would be inconsistent with the general thrust of the Directive.

In relation to the second issue, the Supreme Court found that the Circuit Court was not required to allow a full appeal on the merits, but should apply the Orange test as outlined above.

In relation to the third issue, the Supreme Court found that the issue was one for European law.

Accordingly the Court, as a final court of appeal, applied the test set out in case 238/81 Srl CILFIT and Lanificio di Gavardo SpA v. Ministry of Health E.C.R. 3415. In that case, the CJEU held, at para. 16:

“…the correct application of Community law may be so obvious as to leave no scope for any reasonable doubt as to the manner in which the question raised is to be resolved. Before it comes to the conclusion that such is the case, the national court or tribunal must be convinced that the matter is equally obvious to the courts of the other Member States and to the Court of Justice. Only if those conditions are satisfied, may the national court or tribunal refrain from submitting the question to the Court of Justice and take upon itself the responsibility for resolving it.”

As the Court was not satisfied as to the clarity of the law, it was proposed that questions would be referred to the European Court of Justice.