The Complaint
The Appellant submitted a Data Access Request ("DAR") Form to his former employer, a government department, pursuant to Section 18 of the Ordinance asking for copies of his appraisal reports. The government department provided copies of these reports to the Appellant but the names, post titles and signatures of those appraising officers, reviewing officers and countersigning officers had been obliterated. The Appellant was dissatisfied, as he was previously supplied with unedited copies of the reports free of charge at the performance appraisal interviews. He had lost these unedited reports, of which he was now in urgent need for seeking new jobs. He lodged a complaint with the Commissioner for the alleged failure to comply with his DAR.
Findings by Privacy Commissioner
The government department claimed that it was merely following guidelines issued by the Civil Service Bureau in complying with the DAR. It is not disputed that the content of the redacted reports are the same as those lost copies except that the names etc. of the officers are edited out. The Commissioner found that those names, post titles and signatures were not the personal data of the Appellant but were the personal data of the officers. The Commissioner cited in support Wu Kit Ping v. Administrative Appeals Board, HCAL No. 60 of 2007 ("WKP"), and formed the view that the DAR had been fully complied with and decided not to issue any enforcement notice.
The Appeal
The Appellant argued that the Commissioner wrongly applied the case of WKP. He sought to distinguish his case from WKP on three points :-
(i) In WKP the Applicant never had the documents she wanted access to, while the Appellant was once given and kept unedited copies of the appraisal reports.
(ii) In WKP the Applicant did not know the identity of the persons she wanted to complain against. It was different from the Appellant’s case that he knew very well who those officers were.
(iii) The appraising reports were important as the Appellant needed them for finding jobs. The redaction of particulars in the case of WKP was not important and it did not affect the investigation the Applicant was undertaking.
The AAB found that the legal principle to apply in the present case cannot be distinguished from WKP. In WKP, it was held that a data subject was only entitled to access his personal data and not to every document in which a reference was made of him. The AAB found that the redacted particulars of the officers can be legitimately redacted. Firstly, they are not personal data of the Appellant. The Appellant has no right of access to them under the Ordinance. Secondly, section 20(2)(b) applies as those are names and information explicitly identifies the officers. The AAB further expressed that the usefulness or otherwise of those reports is irrelevant to the issue whether the government department has complied with the DAR as none of his personal data had been withheld.
The AAB's Decision
The AAB upheld the Commissioner’s decision not to issue an enforcement notice and dismissed the appeal.
uploaded on web in Novemeber 2013