On 20 June 2019, Klasen performed the progress test as a part of his hospital internship at Erasmus MC. He did not pass his test and therefore asked if he could have access to it. It was granted, but only in an extremely limited fashion: he got an indication of his score per theme, but individual questions and answers were not shown. The programme directors declined full access, as they wanted to prevent all the questions becoming publicly available, and because it didn’t fit in with the programme’s ‘didactic vision’. Usually — limited — access is given and there is the opportunity for speaking individually with the lecturer, but only after a resit is failed.

Klasen said that this limited access to the test did not allow him to check whether the lecturer had graded the exam correctly, nor did it provide him with an opportunity to learn from the mistakes he himself made. Klasen lost his case concerning the exams with the Appeals Board, an independent professional body of the university. After that, he launched an appeal with the most senior education court in the country, the Higher Education Appeals Tribunal (‘College van Beroep voor het Hoger Onderwijs’, abbreviated to CBHO in Dutch) in the Hague. It upheld the appeal this week.

'Access' does not comply with the law

The highly limited access to exams does not comply with the law, so judges the CBHO. The Higher Education Act requires that an Education and Examination Regulation (‘Onderwijs- en examenregeling’, OER) stipulates how and within what period a student can review questions, assignments and used norms. The OER of Medicine contains no provision for the access to the questions, which means that, according to the CBHO, it is incomplete.

The university argues that this specific instance did not concern an exam, but rather a subtest (and that the exam provisions therefore do not apply); this defence was overruled by the tribunal as well. “Especially because the result of the subtest partly determines the final grade, the Tribunal judges that the subtest should be seen as part of an exam, to which (…) the right of access applies”, reads the verdict. That — according to the university — there are didactic arguments to only allow for access after a resit has been failed is insufficient reason to apply the law only partially, states the Tribunal.

Legal costs

The Medicine study programme will now have to come to a new decision regarding Klasen’s request for access, this time taking this ruling into account. The university will have to cover Klasen’s legal costs of over 1000 euros. Responding to questions from EM about the case, Erasmus MC has indicated that it does not wish to discuss the consequences of the case at this time. “Erasmus MC respects the court’s decision of course and will consider the future details of testing in the master’s phase. This may take some time”, a spokesperson said.

At an earlier point, Klasen managed to request a copy of his exam by appealing to the privacy act GDPR. As the study programme regarded only his answers as personal data, the questions were made illegible. That meant that Klasen could still not learn from any of his mistakes. He wants to challenge this before the Dutch Data Protection Authority.

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