AAB penalized Appellant by costs order under section 22(1) of the Administrative Appeals Ordinance where Appellant conducted his case in a frivolous or vexatious manner.
An employer of domestic helper accused the employment agent of disclosing his personal data to his wife's friend - complainant refused to furnish independent corroborative evidence from that friend - case failed on lack of prima facie evidence - DPP3
The Complaint
The complainant employed a domestic helper through the services of a domestic service agency. In arranging for the employment, the agency kept a file that contained the complainant's personal data such as his identity card copy and proof of income. Later, when his wife's friend visited the same agency seeking the services of a domestic helper, it was alleged that the agency showed the file to the friend. The complainant complained that the agency had disclosed his personal data without his prior consent.
Findings of the Privacy Commissioner
The agency refuted the allegation made by the complainant and claimed that it was only showing the biography of the complainant's domestic helper to the friend. In following up the complaint, the Privacy Commissioner considered it crucial to obtain evidence from the friend as he would have actual knowledge of the incident. However, despite repeated requests, the complainant refused to supply the contact details of the friend. In the absence of corroborative evidence, the Privacy Commissioner notified the complainant under section 39 of the PDPO that there was to be no further investigation of the case.
The Appeal
The complainant was dissatisfied with the decision and appealed to the AAB. He argued that his wife had rung the agency on the matter and the person responsible at the agency had admitted the mistake and apologized to her. The complainant opined that the admission by the agency could amount to sufficient evidence against the agency and insisted that the Privacy Commissioner should find the case in his favour even without the testimony of the friend.
After hearing the appeal, the AAB decided that the Privacy Commissioner was proper in exercising his power to conclude the case under section 39(2)(d) of the PD(P)O as it would be impossible for the Privacy Commissioner to arrive at a reasonable, fair and just conclusion when the allegations were contested by the party complained against and there was no corroborative evidence to support the complainant's allegations. The evidence, or the lack of it, to be given by the friend was regarded by the AAB to be crucial and important in this case.
AAB's decision
The AAB upheld the Privacy Commissioner's decision and dismissed the appeal. The AAB was satisfied that the complainant had conducted his case in a frivolous or vexatious manner and that it would be unjust and inequitable not to award costs against him. Accordingly, costs were awarded to the Privacy Commissioner pursuant to section 22(1) of the Administrative Appeals Board Ordinance.