PCPD - 2002-2003 Annual Report

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2002-2003 Annual Report_17

Legal

Notes on Appeal Cases lodged with the Administrative Appeals Board

Under the PD(P)O, where the Privacy Commissioner has decided to exercise his power under section 39 to refuse to investigate or to continue to investigate a complaint brought before him, the complainant may appeal to the Administrative Appeals Board ("AAB") against such decision. Furthermore, where the Privacy Commissioner has completed an investigation, his decision not to issue an enforcement notice against the data user complained against may be the subject of an appeal to the AAB by the complainant. Alternatively, if as a result of an investigation, the Privacy Commissioner decides to issue an enforcement notice against the data user investigated, the data user may also appeal to the AAB against the enforcement notice so issued.

There were in total 16 AAB appeal cases disposed of in the reporting period. Out of which, 7 cases were dismissed, 7 cases were struck out, 1 case was withdrawn and for the remaining one, the terms of the enforcement notice issued were varied. Case notes on some of the appeal cases are given below.

Appeal against the issuance of an enforcement notice (1/03)

This was an appeal by a University against an enforcement notice issued by the Privacy Commissioner pursuant to section 50 of the PD(P)O. The complainant was a staff member of the University. She made two data access requests to the University. The first request was for access to her personal data from the Personnel Office and a Department of the University. In the second request, she sought access to all data including data that came to the possession of the University since her first request. In responding to her requests, the University provided 550 pages of documents to the complainant. Not satisfied with what she obtained, the complainant lodged a complaint with the PCPD alleging that the University had not provided her with all her personal data as requested in her data access requests.

The PCPD carried out an investigation of the complaint and conducted a site investigation at the premises of the University. Having completed the investigation, the Privacy Commissioner found that the University failed to provide a copy of certain documents which, being personal data of the complainant, should have been given to the complainant in accordance with section 19(1) of the PD(P)O. To remedy the contravention, the Privacy Commissioner served an enforcement notice on the University directing it, amongst others, to:

a) conduct a thorough search amongst the complainant's personal data that were in possession and control by the University; and

b) compile and provide to the complainant a Consolidated Document List.

The University appealed to the AAB. The AAB decided that by imposing the requirement of conducting a "thorough search", the Privacy Commissioner in effect placed a higher burden on the data user than the statutory duty to exercise all due diligence as required under section 64(8) of the PD(P)O. As regards the "Consolidated Document List" the AAB held the view that the complainant had no right to such a list and the imposition of this requirement was contrary to section 20(3)(b) of the PD(P)O. It was for the data requestor to identify the data he or she required and not for the data user to prepare a full or consolidated list for the data requestor to pick and choose. For these reasons, the AAB decided to strike out the requirements of a "thorough search" and a "Consolidated Document List" and adopted an amended enforcement notice to replace the one issued by the Privacy Commissioner.

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