Complaint & Enquiry Cases
Notes on Complaint & Enquiry Cases related
to DPP1 - purpose and manner of collection
The complainant alleged disclosure of his witness statement by an unidentified person to his employer in reporting crime and illegal acts - he could not specify the identity of the data user - there was no evidence of unfair or illegal collection of the statement - disclosure exempted under section 58(2) - components of "complaint" under section 37.
The complainant was a public officer involved in an operation leading to the arrest of certain people. He provided a witness statement to the police in relation to the operation. However, he was not asked to testify at the trial and the statement was not tendered as evidence. After the trial, a person lodged a complaint with the Department the complainant worked for accusing the complainant of giving a false statement to the police and being involved in other criminal acts. A copy of the statement was enclosed in the complaint received by the Department. The complainant lodged a complaint with the Privacy Commissioner alleging that the informant unfairly and illegally collected his statement and improperly used the data contained in the statement without his consent.
Findings of the Privacy Commissioner
As the complainant failed, as required under section 37 of the Ordinance, to identify the person against whom he complained, the Privacy Commissioner refused to investigate. There was no prima facie evidence of unfair or illegal collection of the complainant's personal data. In addition, the statement was used for the purpose of reporting an alleged false statement so as to enable the Department to detect, prevent or preclude seriously improper, dishonest and criminal conduct of its employee. The use of the statement in making the complaint fell within the exempted purposes under section 58(1)(a) and (d) and that failure to use the data would prejudice that purpose. By virtue of section 58(2), such an act was exempted from DPP3 of the Ordinance. Accordingly, the Privacy Commissioner refused to investigate pursuant to section 39.
The complainant argued that the Privacy Commissioner failed to ascertain if the person had lawfully and fairly collected his personal data and also failed to adequately explain the reason for adopting the exemption under section 58 in refusing an investigation.
The AAB ruled that section 37(1) of the Ordinance required the complainant to specify the data user complained against. The mere provision of a source through which the data user could somehow be identified was not sufficient.The complainant was unable to name the informant and only provided the Privacy Commissioner with the name of the officer who handled the Informant’s complaint. The AAB found that the requirement under section 37 was not satisfied in that the complainant failed to name the data user in his complaint.
The provision of a false statement to the police is an illegal and criminal act. The person who used the statement and reported the matter for the purpose of detecting crime, and punishing illegal or improper conduct, or dishonesty was doing it for an exempted purpose under section 58(1). Failure to use the data would likely prejudice the investigation by the Department into the conduct complained of. The invocation of the exemption provision under section 58(2) was proper, thus no contravention of the Ordinance was shown.
The AAB also ruled that there was no evidence suggesting how the statement was collected and that mere possession of it did not amount to unfair or illegal collection. The AAB agreed that in the absence of prima facie evidence suggesting a contravention under the Ordinance, the Privacy Commissioner was entitled to exercise his discretion under section 39 and refuse an investigation.
The AAB acknowledged that a complaint had to be supported on grounds and with evidence, and that the Privacy Commissioner could refuse to investigate if these conditions were not met. To do otherwise would result in an injustice to the party being complained against, and lead to an abuse of the complaint mechanism.
The AAB's decision
The AAB upheld the Privacy Commissioner's decision and dismissed the appeal.
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