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Paragraph (c) — “in a Form in Which Access to or Processing of the Data is



Regarding paragraph (c) of the definition of personal data, the question as to the

meaning of the word “form” arose in a complaint to the Commissioner relating to a

data access request. In his decision, as one of the alternative grounds to support the

finding of no contravention, the Commissioner observed that, insofar as the requested

minutes of the meeting could not be located by the hospital to whom the request was

made, such minutes (even if they existed somewhere in the hospital’s records) might not

have satisfied the requirement in paragraph (c) of the definition of personal data to

constitute the complainant’s personal data at all. On appeal by the complainant to the

AAB in AAB No. 24/1999, the AAB expressed its view that the information contained in

the minutes was not personal data of the complainant and even if it were, there was no

evidence to suggest that the hospital had lied about its existence in refusing to comply

with his data access request.


The complainant then applied for judicial review of the decision of the AAB (Tso Yuen

Shui v. Administrative Appeals Board, HCAL 1050/2000) which was heard by Yeung J.


While upholding the AAB’s decision, Yeung J. commented on the alternative grounds

relied on by the Commissioner referred to above. In particular, he accepted the

complainant’s submission that the word “form” (appearing in the Chinese text as “


”) refers to the physical shape, structure, type, etc. of the data in question. The inability

of the hospital to locate the minutes in question had nothing to do with the form in

which the minutes might have existed.


In illustrating the point, Yeung J. cited an example in which the form of the data is

indeed relevant, that is, where the data user, although in physical possession of certain

computerised data, has no access to the decoder necessary for decoding encoded

data. Yeung J. also pointed out that other cases may be less clear, for example, where

certain minutes of a meeting exist in the form of a paper document, but are contained

in a time capsule buried 100 feet beneath a building.


On appeal by the complainant (CACV 960/2000), the decision of Yeung J. was

confirmed by the Court of Appeal. Accordingly, it is now clear that the mere

impracticability of locating certain data (which impracticability, however, has nothing

to do with the form of the data in the sense of their physical shape, structure, type, etc.)

does not prevent such data from being personal data according to its definition. The

word “form” is given a wider meaning, embracing not just the physical form of the data

but also its state of existence, which paradoxically seems closer to the meaning of the

Chinese text.


In AAB No. 52/2011, an ex-employee made a data access request to his then employer.

Some of the requested data was stored in a laptop computer which crashed, making it

difficult for the employer to retrieve the requested data without technical assistance.

The AAB took the view that although the employer had to engage IT experts to recover

the data contained in the back-up files of the computer and time and expense had to

be incurred, it could not be said that the personal data requested by the ex-employee