Are exam answers personal data?

This is the question that is at the crux of a pending case before the European Court of Justice. The case was a referral to the ECJ from the Supreme Court of Ireland, which asked for guidance to resolve the question.

The case stemmed from a request of a student to view his exam answers after failing the exam. The school refused. The student filed a case but his claim was not supported by the Data Protection Commission of Ireland, saying that the answers were not personal data. Eventually, the case made its way to the Supreme Court of Ireland.

The case has not yet been resolved. What is news is that the Advocate General of the ECJ has issued an opinion that exam answers are personal data under the European Union's data protection laws. In effect, this supports the student's claim that he is entitled to a copy of his exam answers.

Would the same characterization hold true under Philippine law? Under the 2012 Data Privacy Act, personal information "refers to information whether recorded in a material form or not, from which the identity of an individual is apparent or can be reasonably and directly ascertained by the entity holding the information, or when put together with other information would directly and certainly identify an individual." This is quite a broad definition so there is a possibility that exam answers can also be considered as personal information in this jurisdiction. This will be even more likely if the ECJ takes this position as our data protection regime was modeled from that of the EU, among others.

Why is the characterization of exam answers as personal data crucial? One of the rights of a data subject is access to the personal data that a personal information controller has about him/her. If exam answers are personal data, then schools, offices, even the Supreme Court of the Philippines, cannot refuse examinees access to their test papers. (Note that the Supreme Court only releases the exam booklets of bar exam takers who pass. Those who fail the exam never see their booklets again.)

Read about the case here.

#dataprivacy #personalinformation #EuropeanCourtofJustice