Nowak v Data Protection Commissioner and Institute of Chartered Accountants in Ireland, 26 February 2018

• Judgment Date: 26 February 2018
• Issuer: High Court
• Year: 2018

[2018] IEHC 118

THE HIGH COURT

(CIRCUIT COURT APPEALS)

[2014 No. 118 C.A.]

[CIRCUIT COURT 2013 No. 10332]

IN THE MATTER OF THE DATA PROTECTION ACTS, 1988 & 2003

IN THE MATTER OF AN APPEAL PURSUANT TO SECTION 26 OF THE DATA PROTECTIONS ACTS 1988 & 2003

BETWEEN

PETER NOWAK

APPELLANT

AND

DATA PROTECTION COMMISSIONER

RESPONDENT

AND

INSTITUTE OF CHARTERED ACCOUNTANTS IN IRELAND

NOTICE PARTY

JUDGMENT of Mr. Justice Coffey delivered on the 26th day of February, 2018

1. This is an appeal on a point of law against an order of the Circuit Court made on the 3rd June, 2014 dismissing the appellant’s

appeal of a dec ision of the respondent made on the 27th January, 2014.

2. In its dec ision of the 3rd June, 2014 the Circuit Court determined, inter a lia:-

(1) That an exam script involving the transposition of model answers from a text book to an exam sheet did not

constit ute “personal data” within the meaning and for the purposes of t he Data Protec tion Acts 1988 and 2003;

(2) That insofar as the respondent had determined that the appellant’s complaint did not require investigation bec ause

the exam script in issue did not c ontain personal data, t he complaint was unfounded in law and c ould not be appealed

under s. 26 of the Data Protec tion Act 1988 (“the Ac t of 1988”).

3. The respondent acc epts that, arising from subsequent decisions of t he European Court of Justic e and the Supreme Court

respectively, both of t hese issues have been determined in favour of the appellant. T hese dec isions arose from an earlier but related

appeal brought by the appellant against a dec ision of the respondent made on the 21st July, 2010.

4. In a preliminary reference from the Supreme Court, t he European Court of Justic e in Case C- 434/16 held that Article 2(a) of

Direct ive 95/46/EC must be interpreted a s meaning that the writt en answers submitted by a c andidate at a professional examination

and any comments made by an examiner therein with respect to t hose answers c onstitute personal data within the meaning of the

said provision.

5. In Nowak v. Data Protec tion Commissioner [2016] 2 I.R. 585, the Supreme Court held that t he mere fact that t he respondent

determined that a c omplaint was ill-founded in law did not prec lude the appellant from bringing a stat utory appeal pursuant to s. 26 of

the Ac t of 1988.

6. The appellant’s appeal t o the Circuit Court included an appeal from the decision of t he respondent on t he issue of whet her the right

of ac cess under s. 4 of the Data Protec tion Act 1988 entitled him access to t he original exam script, an issue which a ppears not to

have been det ermined by the Circuit Court.

7. For the f oregoing reasons, the parties have consent ed to t he making of the f ollowing orders by t his Court:-

(1) An order quashing the decision of t he Circuit Court insofar as it held that a n appeal did not lie against the decision of

the respondent made on the 27th January, 2014;

(2) An order quashing the decision of t he Circuit Court insofar as it held that a n exam script of the nat ure at issue in

these proc eedings did not const itute personal data ;

(3) A conse quential order quashing the dec ision of the respondent made on the 27th January, 2014 insofar as it held t hat

an exam script of the nature at issue in t hese proceedings did not c onstitute personal data;

(4) A declaration t hat t he Circuit Court erred in law in failing to address the issue of whether t he appellant is entitled t o a

declaration that the right of acc ess under s. 4 of the Data Protect ion Acts 1988 and 2003 entitles a data subject t o

acc ess the originals of his or her personal data.

8. Rather than remitting it to t he Circuit Court, t he parties have c onsented to this Court det ermining the only remaining issue, namely

whether a dat a subject , pursuant to s . 4 of t he Data Protec tion Acts 1988 and 2003, is entitled t o acc ess his or her personal data in

its original form.

The Data Protection Directive

9. EU Direct ive 95/46/EC was adopted in 1995 and regulates the processing of personal data within the European Union.