PCPD - The Privacy Commissioner responds to media report today that Cathay Pacific Airways Limited lawyer John Bleach believed the Commissioner had erred in law. He described the finding that cabin crews feared they would face disciplinary action as irration

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The Privacy Commissioner responds to media report today that Cathay Pacific Airways Limited lawyer John Bleach believed the Commissioner had erred in law. He described the finding that cabin crews feared they would face disciplinary action as irration

Date: 23 May 2008

The Privacy Commissioner responds to media report today that "Cathay Pacific Airways Limited lawyer John Bleach believed the Commissioner had "erred in law". He described the finding that cabin crews feared they would face disciplinary action as irrational."

The Privacy Commissioner for Personal Data, Mr. Roderick B Woo noted and respected the High Court's decision yesterday granting leave to Cathay Pacific Airways Limited ("Cathay") to judicially review his decision. The Commissioner maintains that his decision in Cathay's case is fair and reasonable.

In late 2005, the local media reported that Cathay required its cabin crew who took long or frequent sick leave to disclose to Cathay their past medical records. After a thorough investigation, the Commissioner found that Cathay required its cabin crew to disclose their past medical records under the threat of a disciplinary process. He decided that Cathay was in breach of Data Protection Principle 1(2) as the means of collection of the personal data was unfair in the circumstances of the case. In pursuance of the power vested on him, the Commissioner served an Enforcement Notice on Cathay requiring it to cease the practice and destroy all the medical records it had collected from its employees.

Dissatisfied with the Commissioner's decision, Cathay lodged an appeal with the Administrative Appeals Board. The hearing of the appeal was heard by the Board on 27 February 2008 chaired by Mr Arthur Leong Shiu-chung, GBS, a retired Court of Appeal Judge. The decision of the Board was handed down on 2 May 2008. The Board dismissed Cathay's appeal mainly on the ground that in asking the cabin crew to consent to the disclosure of their past medical records, Cathay conveyed a message, "call it threat or information about serious consequences, put pressure on the cabin crew to consent to release his/her personal data which he/she would not otherwise agree to release."

In the last few years, there is a rising trend of appeals being lodged with the Administrative Appeals Board against the Commissioner's decisions.

Year Number of appeal cases

2003 5

2004 17

2005 22

2006 22

2007 28

The statistics shows that about 90% of the appeal cases against the Commissioner have been dismissed by the Board.

The increasing number of appeals has strained the limited resources of the Commissioner's Office. The work involved in defending an appeal lodged with the Administrative Appeals Board is no less than defending a civil appeal in the Courts. The Commissioner has to prepare a statement to justify his decision and a supporting list of documents. He is also required to serve on all the parties to the appeal copies of relevant documents and information.

Appeal cases are handled internally by the Commissioner's Office although the Appellants are sometimes represented by a team of solicitors and barristers and Senior Counsel as in Cathay's appeal to the Board.

When cases are brought before the Court of First Instance for judicial review, the Commissioner has to brief a barrister in private practice since his in-house solicitors do not have a right of audience. This can often be costly.

The Commissioner says "I welcome judicial scrutiny of my decisions (exception for monetary reasons) because more judicial rulings in data privacy matters do provide more guidance to all who are concerned with this important area of human right."

END

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