Charles Flanagan (Laois, Fine Gael) | Oireachtas source

I move amendment No. 66:

In page 43, to delete lines 20 to 28 and substitute the following:“Right of access to results and scripts of examination and results of appeal

55. (1) Subject to subsection (3), a request by a data subject under Article 15 in relation to the result of an examination at which he or she was a candidate, or in relation to a script completed by him or her in the course of such an examination shall, for the purposes of that Article, be taken to have been made on the later of—

(a) the date of the first publication of the results of the examination, or

(b) the date of the request.

(2) A request by a data subject under Article 15 in relation to the result of an appeal by the data subject against the result of an examination at which he or she was a candidate shall, for the purposes of that Article, be taken to have been made on the later of—

(a) the date of the first publication of the results of the appeal, or

(b) the date of the request.

(3) Where—

(a) a request by a data subject referred to in subsection (1) relates to a script completed by him or her in the course of an examination in the Leaving Certificate Examinations conducted by the State Examinations Commission, and

(b) the data subject, whether before or after the making of that request, appeals the result of the examination referred to in paragraph (a),

that request shall be taken to have been made on the date of the first publication of the results of the appeal referred to in paragraph (b).

(4) In this section—

“appeal” means any formal process to enable a candidate to request a recheck of an examination result which is specified by a person who operates the examination;

“examination” means any process for determining the knowledge, intelligence, skill or ability of a person by reference to his or her performance in any test, work or other activity;

“script” means any work produced by a candidate as part of an examination including any examination answer-book (whether in written or digital form), journal, portfolio, audio and visual recording, practical piece or artefact and, for the purposes of this definition, shall be deemed to include—

(a) an audio or visual recording, produced in the course of an examination, of the performance of the candidate in the examination, and

(b) any marks or comments added to the script, or made in relation to the script, by an examiner in the course of his or her marking of the script.”.

On Committee Stage I undertook to examine amendments tabled by my colleagues, Deputies Brophy and Burke, which sought to insert provisions into the Bill that will address the far-reaching implications of the European Court of Justice ruling in December in the Nowak case that examination scripts are personal data for the purposes of data protection law. Amendment No. 66 inserts a new, more detailed section 55 in the Bill, while amendment No. 79 will permit the making of regulations, if required, to restrict access rights of individuals to safeguard the integrity and security of examination systems. I note in passing that the Court of Justice ruling in the Nowak case, which was referred to the Luxembourg court by our Supreme Court, is an example of the dynamic and expansive approach being taken by the court in the field of data protection. I propose these amendments on that basis.

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