Accountancy exam student fails in appeal over right to be given the original scripts

A man who won a landmark challenge over access to copies of his accountancy exam scripts has failed in an appeal in which he claimed he also had a right of access to or to be given the originals because of his fears of "doctoring" of the papers.
Accountancy exam student fails in appeal over right to be given the original scripts
In 2017, Peter Nowak won a European Court of Justice (ECJ) ruling that his scripts were personal data. Ultimately he was provided with a copy of that data by the Institute of Chartered Accountants of Ireland (ICAI) which ran the exams for trainee accountants. However, an issue in relation to access to or right to the original scripts themselves remained. File image

A man who won a landmark challenge over access to copies of his accountancy exam scripts has failed in an appeal in which he claimed he also had a right of access to or to be given the originals because of his fears of "doctoring" of the papers.

In 2017, Peter Nowak won a European Court of Justice (ECJ) ruling that his scripts were personal data. Ultimately he was provided with a copy of that data by the Institute of Chartered Accountants of Ireland (ICAI) which ran the exams for trainee accountants. The matter arose out of his request for access having failed to pass his exams in 2009.

In July 2018, after the ECJ ruling and after his case came back before the High Court, he was supplied with a copy of the scripts.

However, an issue in relation to access to or right to the originals themselves remained.

This was dealt with by the High Court which in February 2018 found his right of access under the Data Protection Acts did not require the supply of the personal data held in its original form or format.

He appealed that decision and the Data Protection Commissioner (DPC) opposed the appeal. The ICAI was a notice party.

In the meantime, the ICAI offered him the opportunity to inspect the original scripts under controlled conditions. The ICAI's solicitors told him that even though it was not obliged to do so he could examine the copies he had been provided with against the originals.

He didn't take the offer up because he was appealing the High Court dismissal of his case.

On Wednesday, the Court of Appeal (CoA) ruled the High Court was correct in law in dismissing his case.

Mr Justice Robert Haughton, on behalf of the three-judge CoA, said Mr Nowak had argued in his appeal that when a copy document is “doctored” then access to the original is desirable. Mr Nowak had also argued that unless the person seeking the data has access to the original he/she cannot “check to see whether the data is accurate”.

He had said he “had concerns about the original scripts” and believed that the copy was not correct. He “wanted the originals because of the risk of manipulation", the judge said.

Mr Justice Haughton was satisfied that he could not pursue the ‘doctoring’ argument as it was based on hypothetical facts.

In these cases, the DPC, and the Circuit Court on appeal, can only determine the complaint on the facts presented to them, he said.

When it is further appealed to the High Court and further again to the CoA, all that can be determined is a point of law, he said. The higher courts must take the facts as presented before the DPC, and before the Circuit Court.

There had never been any evidence before the DPC or the Circuit Court of doctoring or manipulation, he said.

In arguments for the DPC, the appeal court was told that under a 1995 EU Data Protection Directive (95/46/EC) and our own Data Protection Act, a person was only entitled to a full summary of data "in an intelligible form".

Mr Nowak claimed the Data Protection Act states the obligation to provide data was for a copy of the material in a permanent form unless the supply of a copy is not possible or involves disproportionate effort where the person seeking the data "agrees otherwise."

He argued he had not agreed to merely accepting a copy and that in requiring the originals he was "agreeing otherwise."

Mr Justice Haughton did not agree with that contention.

He was satisfied the High Court correctly identified and interpreted the EU directive and the Data Protection Act. Mr Nowak failed to point to any error of law, he said.

He agreed with the High Court the obligation on the ICAI did not extend to an obligation to provide original exam scripts or to produce them for inspection.

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