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Section 18(1) is so drafted that neither the word “and” nor “or” appear between

paragraphs (a) and (b). Taking the literal meaning that it bears, and in applying the rule

of literal interpretation, paragraphs (a) and (b) could be construed to be two distinct

categories of request. The Commissioner adopts the view that the two paragraphs are

not conjunctive and should be construed to cover two separate categories of request

the choice between which a requestor, in making a data access request, is entitled to

make. In other words, a data access request may consist of only a request under

paragraph (a), or only a request under paragraph (b), or both. Section 18(2) also

provides that if a data access request is made by the same requestor under both

paragraphs (a) and (b), they shall be treated as a single request.


When a data access request is made under section 18(1)(a), section 18(3) of the

Ordinance provides that the data user may, in the absence of evidence to the contrary,

treat the data access request as one made under both section 18(1)(a) and (b). In

addition to simply responding to the request made under section 18(1)(a), the data user

can also choose to supply a copy of the personal data to the requestor pursuant to

section 18(1)(b) of the Ordinance.


Prior to the Amendment Ordinance, it was unclear whether or not a data user could

ignore a request made only under section 18(1)(b) if the data user did not hold the

personal data requested. The Amendment Ordinance clarified this situation by

amending section 19(1) to expressly require data users to inform a data requestor if it

does not hold any of the requested data within forty days of receiving such a request.



It should also be noted that reading paragraph (a) of section 18(1) alone, it is not clear

whether “personal data” as used therein means that a requestor can ask for

confirmation on whether or not a data user holds any of his personal data in general, or

whether the requestor must identify a specific item of personal data in relation to which

he is seeking confirmation. The Commissioner takes the view that the meaning of that

term includes both. In other words, when making a data access request under

paragraph (a), the requestor may choose to ask a data user the general question of

“do you hold any of my personal data in the personnel file?” or, alternatively, the more

specific question of “do you hold my appraisal report dated xxx?” (the appraisal report

being a specific document that contains the requestor’s personal data).


It should also be noted that no reference is made in paragraph (a) or (b) of section 18(1)

to a description or list of data (if any) being held. Accordingly, where a data access

request is phrased in terms such as “give me a list of all my data held by you”, the

Commissioner is inclined to take the view that this does not strictly constitute a data

access request within the meaning of section 18(1) obligating compliance by the data

user under the Ordinance. It has been confirmed in the case of AAB No. 24/2001

(discussed in paragraph 10.37 below) that a data subject has no right to demand an

exhaustive list of all his data held by a data user. A data user, however, may sometimes

choose to provide such a list to facilitate its handling of a data access request,


The issue of whether a data user, in compliance with a data access request made under section 18(1)(a) of the

Ordinance, may inform the requestor verbally that the data user does not hold the requested data, formed the subject

matter of

AAB No. 10/2010

. The AAB referred the said question of law to the Court of Appeal for determination by way

of case stated. The Court of Appeal, in

CACV 229/2011

, answered the question in the affirmative having considered the

original provision of section 19(1) prior to the Amendment Ordinance, the purpose of the Ordinance and public policy,

as well as the proposed amendments to section 19(1). See also paragraphs 10.29 to 10.31 for discussion on section 19(1).