The Complaint
The Appellant was a customer of a bank ("Bank"). On 10 August 2011, the Bank executed buy orders on behalf of the Appellant to close out his account and informed the Appellant on the same day. The Appellant suspected that the Bank had earlier on blocked his attempt to make a deal online to protect his position. On this matter, he lodged a complaint with the Hong Kong Monetary Authority ("HKMA"). He also made a data access request ("first DAR") to the Bank which he later withdrew upon the Commissioner's enquiry. Subsequently, the Appellant made another DAR to the Bank ("second DAR") for: (1) telephone conversation records between the Appellant and the Bank's FX Trading Hotline on various dates; (2) the Bank's FX Margin trading rate and detailed calculations; (3) the identity of the contact persons of the Bank; and (4) copies of all related information about the Appellant's FX Margin Trading account which the Bank had provided to the HKMA and the Commissioner. Dissatisfied with the Bank's response, the Appellant made a complaint to the Commissioner.
Findings of the Commissioner
Having considered all circumstances of the case, the Commissioner found that:-
(a) the Bank was legally required to provide copies of the telephone conversations of the Appellant involving his personal data to the Appellant. The Bank had already provided the Appellant with copies of the telephone conversation recording under item (1) but the names, staff numbers and their registration numbers with HKMA were the personal data of the staff concerned and not the personal data of the Appellant;
(b) FX Margin trading rates were not the personal data of the Appellant;
(c) the Margin call percentage and the Bank's calculation were not the personal data of the Appellant as the Appellant's identity could not be ascertained from these items;
(d) the Bank was duty bound by the secrecy provision of the Banking Ordinance, Cap. 155, not to provide the information to the Appellant; and
(e) it appeared that the Appellant was trying to gather information for instituting legal action against the Bank. The real issue of this case was not personal data privacy, but one for which some other redress mechanism would be more appropriate. Dissatisfied with the Commissioner's findings, the Appellant appealed to the AAB.
Findings of AAB
The AAB's findings in the appeal were as follows:
(a) The transaction details, such as data relating to market movements and the Bank's relevant calculations which were not used in the Appellant's transactions, were not the personal data of the Appellant. Therefore, the Bank was not under a duty to disclose the same to the Appellant.
(b) The Appellant's argument that it would be easy for the Bank to provide market information to him was not relevant to the sphere of the Ordinance. Such market information could not have been the Appellant's personal data until an actual transaction took place in his account.
There was nothing to suggest that the Bank was withholding any telephone recordings or fabricating the same and the Appellant was clearly attempting to gather evidence to substantiate his case against the Bank.
Decision of AAB
The AAB affirmed the decision of the Commissioner and dismissed the appeal accordingly.
uploaded on web in July 2014