Date:26 March 2020
Administrative Appeals Board Dismisses Appeal
Relating to the Government’s Marshalling Duties
The Administrative Appeals Board (“AAB”), dismissing
the appeal by the Hon Ted HUI Chi-fung, a member of the Legislative Council (“LegCo”) on 23 March 2020 against the Privacy Commissioner’s decision not to carry out an investigation into his complaint, confirmed the Privacy Commissioner’s finding of no contravention of the Personal Data (Privacy) Ordinance (Cap 486) (“PDPO”) regarding the Government’s marshalling duties in LegCo.
The AAB ruled that the updated information of the whereabouts of the LegCo members in the LegCo Complex would be important for the Government in discharging its constitutional duty under Article 62 of the Basic Law (“BL”) for matters transacted in the LegCo, which was a matter of important public interest.
In dismissing all 6 grounds of appeal made by the Hon Ted Hui, the AAB held that performance of marshalling duties by public officers involved collection of personal data of LegCo members and hence was governed by the PDPO. The information collected, which included:- (i) the names of individual LegCo members; and (ii) whether they were in certain public areas of the LegCo Complex, constituted “personal data” under section 2 of PDPO.
The AAB stressed that the data collected was “bare essential” information to ascertain the whereabouts of the LegCo members in the public areas of the LegCo Complex, which was not excessive. Further, marshalling duties enabled the Government in:- (i) acquiring first-hand information about the progress of the meeting; (ii) monitoring the conduct of voting; and (iii) obtaining a better grasp of members’ attendance as a whole, which ultimately served the legitimate purpose of the Government in discharging its constitutional duty to ensure the passing of a bill or motion under Article 62, BL. The act of collection and the data collected were for a lawful purpose directly related to the function of the Government in vital public interest.
The AAB reiterated that there was no requirement under the PDPO to obtain prior consent from the data subjects before collection of their personal data, i.e. the LegCo members. There was no suggestion, let alone evidence, that marshalling duties had been performed in restricted areas inside the LegCo Complex where the activities of individual LegCo members were meant to be kept confidential and not to be observed by others. The practice of passively recording the whereabouts of individual LegCo members in public areas, as opposed to any sensitive personal information, could not be unfair.
The AAB also refused the Hon Hui’s allegation that he had received no notification regarding the purpose of use of the personal data collected, the class of transferees etc. on or before collection of their personal data. The AAB took the view that the notification requirement did not apply where public officers passively collected the whereabouts of LegCo members in a “non-consensual” manner.
The AAB also accepted that the data collected by the Government should have been erased on a daily basis upon completion of the marshalling duties. Besides, the AAB agreed that no data access request had been made by the Hon Ted Hui, and in any event, the data could have no longer existed owing to the daily erasure policy of the Government.
The Hon Ted Hui also argued that he had not been informed of the policies and practices regarding marshalling duties and therefore the Government was in breach of the data protection principle of openness and transparency. The AAB took the view that the principle was not about any specific request or notification on the individuals concerned. Evidence indicated that the Administrative Wing via the Legislative Council Commission had already provided detailed information on the marshalling duties on various occasions to the LegCo members prior to his complaint to the Privacy Commissioner.
In January 2018, a complaint was made by the Hon Ted Hui to the office of the Privacy Commissioner for Personal Data (“PCPD”) in relation to the deploying of public officers to carry out marshalling duties within the LegCo Complex. The Hon Ted Hui requested the PCPD to investigate whether the Government and the LegCo Secretariat had breached the Data Protection Principles in Schedule 1 of the PDPO. In April 2018, the Privacy Commissioner decided not to investigate the complaint further on the ground that the marshalling duties had not breached the PDPO. The Hon Ted Hui appealed against the Privacy Commissioner’s decision in May 2018.
The AAB is an independent statutory body established under the Administrative Appeals Board Ordinance, Cap. 442. The Board will hear and determine appeals against a decision made in respect of an appellant and which falls under its jurisdiction. A person who has complained to the PCPD may appeal to the AAB against a decision of the Privacy Commissioner not to carry out an investigation of his complaint or, if there is an investigation, to terminate the investigation or not to issue an enforcement notice against the relevant data user after completion of the investigation.