Disclosure of salary proof in a claim of salary loss
The enquirer was involved in a lawsuit at the Small Claims Tribunal (the “Tribunal”). The Adjudicator of the Tribunal requested him to provide his salary proof to support his claim of salary loss. Knowing that the Adjudicator would provide a copy of his salary proof to the opposite party, the enquirer wanted to know whether he was entitled under the Personal Data (Privacy) Ordinance (the “Ordinance”) to object to the disclosure of his salary proof by the Adjudicator to the opposite party.
Relevant provisions of the Ordinance
Disclosure of personal data
Data Protection Principle (“DPP”) 3(1) & (4) in Schedule 1 to the Ordinance stipulates that personal data shall not, without the prescribed consent of the data subject, be used (including “transferred” and “disclosed”) for a new purpose. “New purpose”, in relation to the use of personal data, means any purpose other than the purpose, or a directly related purpose, for which the data was to be used at the time of the collection of the data.
Exemptions
However, according to section 51A of the Ordinance, personal data held by a court, a magistrate or a judicial officer in the course of performing judicial functions is exempt from the provisions of all DPPs. Schedule 1 to the Judicial Officers Recommendation Commission Ordinance (Cap. 92) contains a list of judicial officers which includes Adjudicators of Small Claims Tribunal.
On the other hand, personal data is exempted from the aforesaid provisions of DPP3 under section 60B of the Ordinance if the use of the data is-
(a) required or authorised by or under any enactment, by any rule of law or by an order of a court in Hong Kong;
(b) required in connection with any legal prceedings in Hong Kong; or
(c) required for establishing, exercising or defending legal rights in Hong Kong.
Our comment
To ensure a fair trial, all parties involved in a lawsuit should be provided with the same set of documentary evidence to support / defend their cases. The enquirer claimed for his salary loss and therefore it is totally relevant and fair for the opposite party to be provided with a copy of the enquirer’s salary proof in the relevant proceedings.
Sections 51A and 60B are relevant exemption clauses under the Ordinance in this case. In short, disclosure of personal data under the circumstances set out in section 51A or 60B (which includes the situation provided by the enquirer) is exempted from the provisions of DPP 3.
(Uploaded in January 2016)