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Legal
Notes
on Appeal Cases Lodged with the Administrative Appeals Board
 Under
the Ordinance, an appeal may be lodged by a complainant, or the relevant
data user complained of, against the decisions made by the Privacy Commissioner.
Pursuant to section 39(4), an appeal may be made by a complainant to the
Administrative Appeals Board ("the AAB") against the decision
of the Privacy Commissioner in refusing to exercise his powers to investigate
or to continue to investigate a complaint. An appeal may also be lodged
by a complainant pursuant to section 47(4) against the decision of the
Privacy Commissioner in refusing to issue an enforcement notice against
the data user complained of, after completion of an investigation. Similarly,
a data user that is the subject of an investigation has the right to appeal
to the AAB pursuant to section 50(7) against the decision made by the
Privacy Commissioner in issuing an enforcement notice against it.
A total of 26 AAB
appeal cases were heard during the reporting period. Case notes on selected
appeal cases are presented below.
Complainant
was party to a Small Claim and Lands Tribunal Claim concerning management
of the building - letter addressed to complainant inviting attendance
at the Owners' Meeting was posted up by management company of the building
- no deletion of name and address of complainant - not necessary for purpose
of inviting other owners to attend the meeting - DPP3, section 50 (AAB
Appeal No. 10/2006)
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The
Complaint
The complainant,
a resident of the building was involved in two pending litigations,
i.e. a Small Claim filed by the management company and a Lands
Tribunal claim lodged by the complainant against the incorporated
owners of the building. A letter was sent to the complainant
via her mailbox inviting her attendance at an Owners' Meeting
to discuss these pending litigations. In addition, the management
company also posted up the letter in public areas of the building.
The complainant complained to the Privacy Commissioner that
her personal data, i.e. her name and address should not have
been disclosed in public by the management company, which
use was in contravention of DPP3.
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Findings
by the Privacy Commissioner
The Privacy
Commissioner found that the purpose of collection of the complainant's
personal data was for the purpose of management of the building.
The public display of the letter inviting her attendance at
the Owners' Meeting and informing other owners about the two
pending litigations the result of which would affect their
interests as owners of the building was for the same and related
purpose, i.e. in discharge of its management function and
hence no prima facie case of contravention of DPP3 was shown.
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The
Appeal
The AAB
found that the purpose of collection of the personal data
of the complainant was for management of the building. However,
in relation to the display in public of the letter, the AAB
took a different view and ruled that such act was unnecessary
for the purpose of inviting the complainant to attend the
Owners' Meeting as the letter had already been sent to the
mailbox of the complainant. It was also not necessary for
the purpose of informing the other owners the steps taken
to invite the complainant to attend the meeting as the matters
concerning the pending litigations could still be discussed
by other owners at the meeting in the absence of the complainant.
However,
in view of the fact that the management company had removed
the letter in question, the AAB found that the decision by
the Privacy Commissioner not to issue an enforcement notice
under section 50 of the Ordinance be upheld.
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AAB's
Decision
The appeal
was dismissed.
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Notice/
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Data, Hong Kong. All rights reserved. Disclaimer
