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The burden of proof is not a particularly onerous one for a data user to discharge as he is

only required to prove that the application of those provisions of the Ordinance would

be likely to cause serious harm to the physical or mental health of the data subject or

any other individuals. No actual serious harm needs to be proven to have been suffered

by the data subject or any other individuals. Although section 59 does not spell out

whether the harm test mentioned therein is a subjective or objective one, in cases

brought before the Commissioner, due consideration is given to whether a reasonable

man in the circumstances of the case would come to the same conclusion as the data

user in question.


In a complaint case lodged against a Chinese herbal medicine practitioner who failed

to comply with a data access request by his patient for copies of the medical

prescriptions, the herbalist relied upon the section 59 exemption as grounds for refusal.

The Commissioner found that the exemption did not apply in the circumstances of the

case as the disclosure would not be likely to cause serious harm to the physical or

mental health of the data subject. On the contrary, the refusal to supply the information

on the medicines prescribed for the patient would be more likely than not to cause

harm to the requestor.


In AAB No.32 /2008, the complainant consulted a clinical psychologist for the purpose of

obtaining a psychological report to pursue a personal injury claim. The complainant

later made a data access request for copies of documents which included, inter alia,

some diagrams that were derived from questionnaires which she completed in the

course of consultation with the clinical psychologist. One of the issues before the AAB

was whether there was any basis for the clinical psychologist to refuse disclosure of the

diagrams under section 59(1) on the grounds that it “might cause [the complainant]

grave distress and increase her suicidal risk”. The AAB took the view that under section

59, the burden was on the clinical psychologist to show that disclosure of the diagrams

would be likely to cause serious harm to the physical or mental health of the

complainant. The AAB found the diagrams not to be comprehensible for untrained

persons without assistance of an expert. Accordingly, it could not be said that their

disclosure would likely cause serious harm to the physical or mental health of the



Illustration of the application of section 59 is also found in a case in which an employee

expressed suicidal intent to his employer. From the staff records kept by the employer, it

was evident that he had been a patient of a psychiatric hospital. Led by the belief that

the person might cause serious physical harm to himself, the employer disclosed the

information to the psychiatric hospital for medical follow-up. The Commissioner was

satisfied that since the life and limb of the data subject was at stake, section 59 was

properly invoked to exempt the application of DPP3 to the personal data of that person

held by his employer.


In the case of AAB No.31/2012, the complainant was a teacher who complained

against the unlawful disclosure of her physical or mental conditions to her colleague by

the school whilst handling a dispute involving students. Both the complainant and the

colleague were involved in handling the dispute. The AAB agreed with the

Commissioner’s view that if her colleague had remained ignorant about the

complainant’s conditions and the fact that she took medication as a result of the