The Complaint
1. Summary of Facts
The complainant who was a school teacher submitted 2 data access requests (the "DAR") to the school for copies of his past performance appraisal reports and records relevant to his past promotions in the school (collectively the "Requested Data"). The school refused to comply with the DAR by relying upon the exemption provision of section 53 of the Ordinance. The school explained that since they encountered reduction of classes in recent years, they have to devise a list of surplus teachers (the "List") for "staff planning" proposal to be submitted to the governing body when required. The schoolmistress took the view that teachers' past performance appraisals and promotion records were relevant data to be considered for devising the List and for making the "staff planning proposal", it was necessary to withhold the Requested Data from the complainant, in reliance of the exemption provision of section 53 of the Ordinance.
2. Issues of the Case
(i) Whether any actual "staff planning proposal" defined under section 53 of the Ordinance existed at the time when the complainant made the DAR and (ii) whether the Requested Data are the personal data contemplated under section 53 of the Ordinance.
Outcome
1. Reasoning
The "staff planning" under section 53 is not intended to apply to personal data about any single position occupied by a particular employee. It refers to personal data relevant to fill series of positions or ceasing any group of individuals' employment. An investigation by the PCPD revealed that the school would only be required to compile the List if so required by the governing body and at the time of their receipt of the DAR, no such request was made by the governing body and hence no "staff planning" as averred to by the school was yet in sight. Moreover, the Privacy Commissioner found that the promotion records and past appraisal reports are no more than routine personnel records compiled or created in the ordinary course of employment. They were not ex facie personal data relevant to "staff planning" as contemplated under section 53 of the Ordinance. The Privacy Commissioner found that the school was not entitled to rely on the exemption provision of section 53 of the Ordinance in not complying with the DAR.
2. Action by the Privacy Commissioner
An enforcement notice was served on the school directing them to provide the Requested Data to the complainant immediately and to devise operational procedures in respect of the handling of data access requests made by individuals, in particular, the school teachers.
3. Improvement action by the school
The school has complied with the enforcement notice.