Administrative Appeals Board ("AAB") does not deal with judicial misconduct. Nor is it concerned with breach of natural justice of judicial officers or with any complaint of neglect of duty or gross misconduct on the part of non-judicial officers or on the part of the officers in the Privacy Commissioner's Office. Personal data collected and held in the course of judicial process was outside the scope of the Personal Data (Privacy) Ordinance ("the Ordinance") and hence could not be accessed via a data access request ("DAR")./
Complainant lodged complaint against a few staff of the Judiciary - DAR requesting the Judiciary to furnish various documents - refusal to comply with DAR - judicial documents - requested document not existed or available or no personal data contained - Commissioner's discretion not to investigate - sections 18(1)(b) and 39 of the Ordinance
The Complaint
The complainant was a claimant in legal proceedings in a Tribunal and had complaints made against a few staff of the Judiciary. She asked the Judiciary for various documents by means of a DAR, including:
(i) witness statements of staff in response to her accusations;
(ii) complaint report recording her verbal complaint against a staff;
(iii) transcript of a Tribunal hearing;
(iv) investigation report;
(v) records of follow up and disciplinary actions against the staff being complained against; and
(vi) complaint handling procedure of the Judiciary
The DAR was refused, although she was provided with a copy of the complaint handling procedure. The Judiciary refused the DAR by asserting that the documents did not exist, that they were judicial documents, or that they did not contain personal data of the complainant. The complainant lodged her complaint to the Privacy Commissioner.
Findings by Privacy Commissioner
The Privacy Commissioner accepted the grounds of the Judiciary for refusing the DAR and stated his views that some of the requested data did not exist at the time of the DAR, did not contain personal data of the complainant or formed part of the court case and thus were not covered by the Ordinance. Therefore, the Privacy Commissioner decided not to investigate the complaint by virtue of section 39.
The Appeal
The complainant appealed to the AAB and argued that even though the data did not exist at the time of the DAR, they should have been provided to her within 40 days after being prepared. She also argued that the Privacy Commissioner should have investigated to find out whether the requested report had actually been compiled, and that the Privacy Commissioner should have advised her of the proper way to retrieve a document to which the Ordinance did not apply.
The AAB opined that it did not deal with judicial misconduct. Nor was it concerned with breach of natural justice of judicial officers or with any complaint of neglect of duty or gross misconduct on the part of non-judicial officers or on the part of the officers in the Privacy Commissioner’s Office. Contrary to the complainant's contention, the Privacy Commissioner had no duty to investigate every complaint but enjoyed a wide discretion not to investigate a complaint by virtue of section 39(2)(d).
As for the duty under section 18(1)(b), the AAB held that the Judiciary committed no breach of section 18 of the Ordinance. It was stated in the judgment that if the data user did not hold the data requested, he was not obliged to comply with the request. It would be absurd to require him to do the impossible if he did not hold the data. The AAB said the Ordinance did not oblige the data user to find out whether the requested data existed or if they existed, to secure them for the purpose of complying with the DAR. In the light of the factual circumstances, the Privacy Commissioner was entitled to conclude as a fact that--
(i) the Judiciary did not hold the items as alleged;
(ii) the complainant's request in the DAR did not cover a minute made regarding her application for reviewing the Tribunal's decision;
(iii) the minute was part of the judicial proceedings at the Tribunal and was thus outside the scope of the Ordinance;
(iv) the transcript of the recording of the hearing at the Tribunal was part of court proceedings, which could be accessed in accordance with the procedures of the Tribunal, to which section 18 of the Ordinance did not apply;
(v) Complaint Handling Procedure contained no personal data let alone personal data of which the complainant was the data subject.
The AAB Decision
The Appeal was dismissed.