The complainant, being a member of an owners’ committee lodged a data access request with an owner requesting access to her views and conversations at two owners’ committee meetings. The owner refused to comply with the request. The appeal related to whether the subject data access request involved the complainant’s personal data. (AAB Appeal No. 28 of 2010)
The Complaint
The complainant was a member of an owners’ committee. She was tape-recorded by an owner during two owners’ committee meetings in which she expressed her views on various matters. She lodged a data access request with the owner requesting access to her views and conversation at the two meetings but was refused on the ground that the recording did not contain her personal data. The complainant alleged that (i) the owner had breached sections 18 and 19, and DPP6 under the Ordinance for failing to comply with the data access request; and (ii) the owner had breached DPP1 for collecting her personal data unlawfully and unfairly by tape-recording what she said without her explicit consent and knowledge, and despite her protest.
Findings of the Commissioner
The Commissioner conducted a preliminary enquiry into the circumstances giving rise to the complaint and notified the complainant of his decision that it was unnecessary to carry out a full investigation of her complaint pursuant to section 39(2)(d) of the Ordinance. The Commissioner was of the view that opinions and views expressed by the complainant at the meetings did not amount to her personal data and in any event the owner was collecting data for her personal use, and therefore, such data were exempted from the application of data protection principles by virtue of section 52 of the Ordinance.
The Appeal
The complainant raised three grounds of appeal to support her case. The first ground was that since the views and opinions related to the complainant, the Commissioner should conclude that they were her personal data. The second ground was that the scope of the section 52 exemption was limited and that in the circumstances of the case, the exemption should not apply. The third ground concerned the Commissioner’s failure to properly address the main concern of the complainant regarding her allegation of the unfair and unlawful collection of personal data. Hence, a formal investigation ought to have been launched.
It was not in dispute that the tape recordings contained the views and opinions of the complainant, and that such views and opinions were about the performance of owners’ committee and about the conduct of those present at the meetings. The complainant argued that the views and opinions expressed at the meetings related to her, and that she claimed that they were her personal data, relying on the proposition that “views and opinions can constitute personal data if they relate directly or indirectly to the data subject” in Wu Kit Ping v Administrative Appeals Board [2007] 5 HKC 450. The AAB opined that the views and opinions in Wu Kit Ping’s case were held to be relating directly or indirectly to the patient because they were about her medical conditions and not because she was the author of the views and opinions. The AAB accepted the Commissioner’s conclusion that the views and opinions in question did not relate directly or indirectly to the complainant because they were about how the owners’ committee should be conducted and how the observer should behave during the meetings.
The AAB also decided in favour of the Commissioner’s decision that the exemption under section 52 of the Ordinance did apply as there was nothing to cast doubt on the claim by the owner that she held the tape recordings for record purpose to manage her personal affairs, and there was no suggestion otherwise by the complainant. Since the DPPs did not apply in light of the exemption, the question of fairness and lawfulness in collecting data ceased to be relevant. The AAB found that it was proper for the Commissioner to take all circumstances into account, in particular the practice of the owners’ committee to permit such recordings and that some of the owners present would tape record the proceedings was known at the time to the complainant. The AAB observed that it was understandable that a person might be intimidated or somewhat discouraged knowing his speech had been recorded. However, the recording was not unfair to the speaker in the circumstances.
The AAB's Decision
The AAB dismissed the appeal and was of the view that the decision of the Commissioner was reasonable and could not be faulted.
uploaded on web in March 2014