The right to access to exams’ written answers
Preliminary ruling of the Court of Justice of the European Union answered the question, if candidates’ written answers in the context of exams and the related corrections of the examiner constitute personal data, as well as whether the candidate has the rights to access and correction of his writing subsequently to the completion of the examination.
The facts of the case
The application for a preliminary ruling was submitted in the context of legal proceedings between Peter Nowak and the Data Protection Commissioner of Ireland, concerning the denial of the Commissioner to allow to P. Nowak to access his corrected test in an examination that he had participated in, on the ground that the information included on it was not personal data. Having doubts whether a written test is personal data, the Supreme Court of Ireland submitted to the CJEU a request for a preliminary ruling on the interpretation of directive 95/46/EC on the protection of individuals with regards to the processing of personal data and the free movement of such data.
To begin with, Directive 95/46/EC defines as personal data “any information related to an identified or identifiable natural person”. An identifiable person is one who “can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his physical, physiological, mental, economic, cultural or social identity.”
The use of the expression “any information” lets on, according to the Court, the legislator’s objective to add a broader definition on this term, covering any information either objective or subjective, in the form of opinion or assessment, providing that information relates to the person concerned; in other words, because of its content, its purpose or its result, the information is connected to the specific person.
According to the Court’s reasoning on the said case, the content of the candidate’s written replies in the context of an exam is an indication of the level of knowledge and the candidate’s skills in a given sector, as well as the way of thinking, his/her reasoning and his/her critical eye.
Furthermore, in the event of handwritten exams, the answers provide information relating to candidate’s handwriting.
Moreover, the purpose of collecting these answers is to estimate the candidate’s professional skills and his/her ability to exercise a specific profession.
Lastly, the use of this information is liable to have an impact on the candidate’s rights and interests, as it can determine or affect, for example, the possibilities of access on the profession or his/her desired working position.
As regards the related with candidate’s answers examiner’s corrections, the Court found that they constitute information, which concern the candidate, as the content of these corrections is the examiner’s assessment of the examinee’s capabilities. These corrections are also able to bring him/her consequences.
The Court decided, therefore, that under circumstances such as those in the said case, the candidate’s written answers on exams and the possible relevant corrections of the examiner constitute personal data of the candidate. Accordingly, the candidate has in principle rights of access and correction (Article 9 of the Directive and Article 15,16 of the Regulation 2016/679), both on his written answers and examiner’s rectifications.
The Court, however, clarifies that the right of rectification does not allow the candidate to “correct”, a posteriori, the “wrong” answers, (as the potential mistakes do not constitute an inaccuracy that needs to be corrected, but rather constitute evidence indicating the candidate’s level of knowledge). Finally, the rights of access and correction do not extend to the questions of the exams, which do not constitute candidate’s personal data.
Practically, in Greece, how can a candidate exercise the right of access on his answers and the related examiner’s corrections?
Practically, a candidate can request written or orally from the examining authority to have access to his/her answers and examiner’s corrections. The right of access is exercised free of charge in principle. The candidate could be asked to pay a reasonable charge, if only the request is manifestly ill-founded or excessive (e.g. when it is repeated) or the number of copies that the examining authority is being asked to give is large. The examining authority has no more than one month to satisfy the request -from its submission- and exceptionally this time limit may be extended by up to a further two months.
*Aikaterini Psihogiou, LL.M., CIPP/E, is a Lawyer in Athens, graduate of the Law School of Athens and holder of Master’s degree (Cum Laude) in Law and Technology in Tilburg University. She is CIPP/E certified. She is working as consultant on personal data protection.
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