Legal

Notes on Appeal Cases lodged with the Administrative Appeals Board

The complainant lodged a data access request under section 18 of the PD(P)O to a government department he was working for. He requested a copy of the statement made by another officer in relation to a complaint that he had previously made to the department. In complying with his request, the department deleted certain information from the requested statement on the ground that such information contained third party's personal data. The complainant was dissatisfied with the edited version and made a complaint to the PCPD against the department for withholding his personal data. Having completed an investigation, the Privacy Commissioner was of the opinion that the department had not contravened section 19(1) of the PD(P)O as the deleted information did not contain the complainant's personal data and notified the complainant of his decision under section 47 of the PD(P)O. The complainant did not agree with the decision and appealed.

The AAB considered the appeal to be groundless. It accepted the findings of the Privacy Commissioner that the deleted information was not in fact the complainant's personal data at all. By withholding such information from the complainant, the department had not acted in contravention to section 19(1) of the PD(P)O. The AAB therefore dismissed the appeal.

The complainant employed a domestic helper through the services of a domestic service agency. In arranging for the employment, the agency kept a file that contained the complainant's personal data such as his identity card copy and proof of income. Later, when his wife's friend visited the same agency seeking the services of a domestic helper, it was alleged that the agency showed the file to the friend. The complainant complained that the agency had disclosed his personal data without his prior consent.

The agency refuted the allegation made by the complainant and claimed that it was only showing the biography of the complainant's domestic helper to the friend. In following up the complaint, the PCPD considered that it was crucial to obtain evidence from the friend as he would have actual knowledge of the incident. However, despite repeated requests, the complainant refused to supply the PCPD with the contact details of the friend. In the absence of corroborative evidence, the Privacy Commissioner notified the complainant under section 39 of the PD(P)O that there was to be no further investigation of the case. Dissatisfied with the Privacy Commissioner's decision, the complainant appealed to the AAB.

After hearing the appeal, the AAB decided that the Privacy Commissioner was proper in exercising his power to conclude the case under section 39(2)(d) of the PD(P)O as it would be impossible for the Privacy Commissioner to arrive at a reasonable, fair and just conclusion when the allegations were contested by the party complained against and there was no corroborative evidence to support the appellant's allegations. The evidence, or the lack of it, to be given by the friend was regarded by the AAB to be crucial and important in this case. The appeal was dismissed. The AAB was satisfied that the appellant had conducted his case in a frivolous or vexatious manner and that it would be unjust and inequitable not to award costs against him. Accordingly, costs were awarded to the PCPD pursuant to section 22(1) of the Administrative Appeals Board Ordinance.

The complainant was a plaintiff in a legal action and was legally represented by a law firm. In the course of handling the complainant's court case, the law firm faxed a letter containing the complainant's personal data to his office. The complainant was dissatisfied with this arrangement and made a complaint to the PCPD.

After a preliminary enquiry, the Privacy Commissioner informed the complainant of his decision under section 39(2)(d) of the PD(P)O that no further investigation was considered necessary. In coming to the decision, the Privacy Commissioner had taken into account the fact that the fax number had been provided to the law firm by the complainant himself. It was also pursuant to the complainant's instruction that the fax had been sent for the attention of the complainant's supervisor whose name was given to the law firm again by the complainant. The Privacy Commissioner opined that there was no evidence to show contravention on the part of the law firm in so faxing the letter to the complainant's office. The complainant disagreed and appealed to the AAB.

The AAB agreed with the Privacy Commissioner that the relevant fax had been sent to the complainant's office with his consent. There was therefore no unauthorized disclosure of personal data as alleged and no evidence of contravention on the part of the law firm. The AAB dismissed the appeal.