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Legal Notes on Appeal Cases Lodged with the Administrative Appeals Board [Image of image]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) [Image of image] [Image of image] 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.     [Image of image] 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.     [Image of image] 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.     [Image of image] AAB's Decision The appeal was dismissed.

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