A complainant went to a bank to open a fixed deposit account. He refused to provide the bank with his marital status, mobile phone number and residential ownership. The appeal related to whether non-provision of the data would render the complainant’s case not a “complaint” under section 37 of the Ordinance. (AAB Appeal No. 27 of 2010)
The Complaint
The complainant went to the Bank to make a fixed deposit where he once had a fixed deposit account was, but the deposit concerned was completely withdrawn a long time ago. The Bank requested the complainant to reopen a fixed deposit account and asked for certain personal information from the complainant. The complainant refused to provide his marital status, mobile telephone number and residential property ownership to the Bank. The Bank, however, insisted that such information had to be provided in the application form for his application to be processed. The complainant left the Bank without opening the fixed deposit account. He subsequently lodged a complaint with the Commissioner, claiming that the Banks’s request for collection of his personal data was excessive, unreasonable and illegal.
Findings of the Commissioner
After making preliminary enquiries, the Commissioner determined that it was not necessary to investigate the complaint for two reasons. He relied on two grounds. First, as the complainant had never provided his personal data to the Bank, his case did not involve any personal data and therefore failed to qualify as a “complaint” under section 37 of the Ordinance since it. He relied on the case of Eastweek Publisher Limited & Another v Privacy Commissioner for Personal Data [2000] 2 HKLRD 83 to support his decision. Second, as he was to conduct a compliance check with regard to the Bank’s practice of opening fixed deposit accounts, an investigation of the complaint was unnecessary.
The Appeal
Although the complainant was notified during the hearing of the completion of the compliance check and the result was already on its way to him by mail, the complainant insisted to on continuing the appeal. He stated that the Bank had attempted to collect his personal data. He submitted that the decision in the Eastweek’s case had not prevented the Commissioner from conducting a formal investigation regarding the complaint and he quoted the Police as an example who had power to investigate attempted crimes. The complainant said he also believed that a compliance check was an investigation of an inferior nature, when compared with a formal investigation of his complaint.
On the first ground of the Commissioner’s refusal to carry out an investigation, the main dispute in the case was whether the act done by or the practice engaged by the Bank would legally amount to collection of the complainant’s personal data. The Commissioner considered that the Bank had not obtained the complainant’s personal data. The complainant, however, contented that the Bank had attempted to collect his personal data and that such collection was not only excessive but also by unfair means. The AAB was of the view that section 37 did not require the act relating to a particular individual to be effective in order for the individual to make a complaint. In addition, there was not any indication that after the complainant had made the complaint, the Bank would cease requesting him to provide the information. On the basis of these two points, the AAB found that the Bank had engaged in matters relating to the complainant’s personal data. Hence, the Commissioner failed in his first ground of refusal to carry out an investigation of the complaint.
As for the second ground of refusal, the AAB considered that given the Commissioner had decided to conduct a compliance check on the practice of the Bank in collecting personal data for opening a fixed deposit account, the refusal to carry out investigation of the complaint was technical in nature. Such a compliance check would have been more comprehensive and in the public interest. The complainant alleged that if the investigation was not carried out under his complaint, he would not be able to participate in the process. On this point, the AAB considered that the Commissioner would, if necessary, seek the complainant’s assistance during the process. The more important thing was whether the final result would cause any difference. The AAB found that no matter whether the investigation was carried out in the name of the complainant’s complaint or by way of a compliance check, the end result would be the same, i.e. to issue an enforcement notice against the Bank if contravention was found.
Hence, the AAB decided that it was unnecessary to conduct an investigation under the name of the complainant.
The AAB's Decision
The Appeal was dismissed.
uploaded on web in March 2014