By Richard van Staden ten Brink
Under Dutch privacy law, individuals have a right to access and receive a copy of their personal data. The Dutch Association of Psychologists (DAP) has recently asked the Dutch Data Protection Authority (DDPA) whether this means that individuals have a right to obtain not only the test results of a psychological test they have taken (such as an employment assessment), but also the underlying "raw test data." Raw test data include the test's questions and answers.
According to the DAP, disclosure of raw test data will increase the risk that test questions and answers become public, which reduces the reliability of the test. In addition, licenses of psychological tests generally prohibit the psychologist to disclose test questions and answers. The DAP sets out that for these reasons, psychologists cannot provide a copy of raw test data to individuals. The DAP suggests that as an alternative, psychologists could allow individuals to take knowledge of raw test data in the psychologist's office.
The DDPA agrees that this is a good solution. Although Dutch privacy law provides a right of access to receive a copy of personal data, this right of access can be limited if this is necessary for the protection of the individual, himself, or the rights or freedoms of others. In this case, disclosure of raw test data could reduce the reliability of psychological tests and violate the intellectual property rights of test authors. It is therefore justified to give individuals only supervised access to raw test data of psychological tests that they have taken.
Richard van Staden ten Brink, CIPP, is advocaat at De Brauw Blackstone Westbroek
in Amsterdam. He may be reached at firstname.lastname@example.org.
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