Nowak v. Data Protection Commissioner - 28 April 2016

• Judgment Date: 28 April 2016
• Neutral Citation: [2016] IESC 18
• Case Outcome: Approved
• Docket Number: 17/2015
• Issuer: Supreme Court

The Supreme Court

2015/017

IN THE MATTER OF THE DATA PROTECTION ACTS 1998 AND 2003

AND IN THE MATTER OF AN APPEAL PURSUANT TO SECTION 26 OF THE DATA PROTECTION ACTS 1988 AND 2003

O’Donnell J

McKechnie J

Clarke J

MacMenamin J

Laffoy J

Dunne J

Charleton J

Between/

Peter Nowak

Appellant

and

The Data Protection Commissioner

Respondent

Judgment of O’Donnell J delivered on 28th day of April 2016

1 Mr Peter Nowak’s difficulties with t he examination in Strategic Finance and Management Acc ounting (“SFMA”), set by the Institute

of Chartered Ac countant s in Ireland (“CAI”), has led him on a legal journey, perhaps unique, through four different levels of the courts

system in Ireland.

2 Mr Nowak was a trainee ac countant who had sat and passed the first level ac countancy e xams set by the CAI, and t hree of t he

four required subjects at second level. However, he failed the SFMA examination in the summer and autumn sessions of 2008, and

again in summer of 2009. When he failed once more in autumn 2009, he took ste ps to c hallenge the result. On t he 12th of May, 2010,

however, he c hanged tac k and submitted a data ac cess request under s.4 of the Data Prot ection Ac ts 1988 and 2003 (“the Acts”)

seeking all “personal data” held by the CAI. T hat body promptly released 17 items to Mr Nowak by letter of the 1st of June, 2010, but

declined to release his examination script on the basis that the CAI had been advised t hat t he sc ript was not personal data within the

meaning of t he Act s. This was the esse ntial issue which was t o occupy t he atte ntion of the Data Protec tion Commissioner (“the

Commissioner”) and four separate courts. Because the CAI took the position it did, the sc ript itself was not disclosed, a nd acc ordingly

neither the Commissioner nor the courts which have reviewed t he Commissioner’s decision have seen it. It is said, however, t hat the

examination was an open book exam, and Mr Nowak contends t hat the script w as in his handwriting and it may have contained

markings and/or comments by t he examiner.

3 Mr Nowak sent an initial email to t he Offic e of the Data Protec tion Commissioner seeking its assist ance and disputing t he conte ntion

that his sc ript was not personal data. He also raised a number of other c oncerns about the information which had been disclosed.

These matte rs, however, are not relevant to t he legal issue which has a risen, and I mention them only as bac kground. By an email of

the 28th of June, 2010, the Offic e of t he Data Protec tion Commissioner offered some observations, and advised Mr Nowak that “exam

scripts do not generally fall to be c onsidered … bec ause this material would not generally constitut e personal data”.

4 There was further correspondence relating t o the information that had been disclosed, and on the 1st of July, 2010, Mr Nowak

submitted a formal complaint form enclosing some of the material supplied to him. There was further correspondence, but on the 21st

of July, 2010, the Off ice of t he Data Prot ection Commissioner wrote to him informing him that having reviewed the information, the

Commissioner had identified no substant ive co ntravention of t he Act s. That lett er, in its material respects, st ated the following:

“In relation to your complaint of 1 July 2010, I must inform you that the Commissioner has examined all papers on this

matter and has not identified any substantive breac h of t he Data Prote ction Ac ts. In acco rdance with Sec tion 10(1)(b)(i)

of the Data Protec tion Act s, we are not obliged to investigat e a c omplaint where no subst antive breach of the Ac ts

remains to be investigated...

… We have now examined fully the material that yo u have supplied and cannot a gree that t he material to which you a re

seeking acce ss can be considered to be your personal data within the meaning of the Data Protec tion Act s as t ransposed

from the EU Directive on data protec tion. …

.... In relation to your complaint of 14 July 2010, I must inform you that t he Commissioner has examined all papers on this

matter and has not identified any matter arising for investigation under the Data Protec tion Acts. T he material over which

you are seeking to exercise a right of correc tion is not personal data to which Section 6 of the Data P rotect ion Acts

applies. In accordanc e with Sec tion 10(1)(b)(i) of t he Data Protec tion Acts, we are not obliged to invest igate a c omplaint