The Complaint
Two Complainants, who were teachers at the school concerned, made data access requests (the “DARs”) to the school for their personal data contained in documents in relation to disciplinary action carried out by the school against them. The DARs were refused by the school on the ground that the requested data was exempt from sections 58(1)(d), (e) and (f) of the Ordinance. The Complainants were dissatisfied with the school’s replies and lodged complaints with the PCPD against the school.
During the course of the investigation, the school submitted that provision of the concerned documents would reveal the identities of the students and teachers who had complained against the Complainants and that complying with the DARs would prejudice the purpose of rectifying the improper conduct and the monitoring of the behaviour of the Complainants. The school thus invoked section 58(1)(d) of the Ordinance to refuse to comply with the DARs. The school further submitted that the disclosure of the concerned documents to the Complainants would result in significant loss to the school within the terms of section 58(1)(e) of the Ordinance, that the morale of the teaching staff would be adversely affected, and that the school might be subject to litigation/legal action by the parties whose identities were thereby revealed. The school also relied on section 58(1)(f) of the Ordinance that the concerned documents were held to ascertain whether the misconduct of the Complainants was likely to have a significant adverse impact on the school in the exercise of its management functions.
Outcome
The Commissioner took the view that, in respect of the applicability of section 58(1)(d) of the Ordinance, the behaviour of the Complainants did not amount to “serious improper conduct”, as the disciplinary action taken against them was merely a warning.
Furthermore, the school only speculated about “significant financial loss”. The Commissioner considered that the potential “loss” asserted was too remote and did not satisfy the requirement of section 58(1)(e) of the Ordinance. Likewise, as the school had failed to prove how the misconduct of two individual teaching staff would have a significant adverse impact on the school’s management functions, and the Commissioner dismissed the ground for exemption under section 58(1)(f) of the Ordinance. Hence, the Commissioner concluded that the school had failed to fulfil the statutory requirements of section 19(1) of the Ordinance.
An enforcement notice was served on the school directing it to comply with the DARs and devise guidelines for handling DARs for its staff to follow. The school agreed with the direction given by the Commissioner and complied with the enforcement notice accordingly.
uploaded on web in January 2014