The Complaint
1. Summary of Facts
After receiving dental treatment provided by an organization, the Complainant lodged a complaint to the Dental Council against the dentist employed by the organization, accusing him of professional misconduct. In order to investigate the complaint, the Dental Council requested the Complainant to provide the relevant dental records, the Complainant thus made a data access request DAR to the organization for a copy of her dental records. The organization replied to the Complainant that they would furnish the Complainant with a dental report at a fee of HK$400.
The organization claimed that the dental records contained not only the Complainant's personal particulars, but also the observations and diagnosis of the dentist-in-charge and it was their policy to release patients' records only to law enforcement agencies. The organization further stated that DAR should not be used as a tool for the Complainant to locate information for litigation or assist her to lodge complaint to other regulatory bodies. The organization further added that they would only submit the Complainant's dental records to the Dental Council direct.
It was subsequently ascertained that the Dental Council would not entertain the case in the absence of the dental records in support.
The Complainant complained against the organization for failing to comply with her DAR.
2. Issue of the case
* Whether the dental reports which the organization agreed to provide to the Complainant was the same as the dental records requested in the DAR so that the furnishing of the dental reports was sufficient for complying with the DAR; and
* Whether the organization's arguments against providing the dental records justified in refusing to comply with the DAR.
Outcome
1. Reasoning
"Data" is defined under section 2 of the Ordinance as any representation of information (including an expression of opinion) in any document. Thus, there was no doubt that the data contained in the Complainant's dental records, including in particular the dentist's diagnosis and observations about the Complainant, amounted to the Complainant's personal data. The dental report which the organization agreed to provide to the Complainant was different from the dental records requested in the DAR. Although the dental report was prepared by reference to the dental records and the dental report might include the Complainant's personal data as contained in the dental records, the furnishing of the dental report to the Complainant was not sufficient for complying with the DAR (unless the dental report includes a copy of all the Complainant's personal data in the dental records, in which case the charge of HK$400 for complying with the DAR would seem excessive).
The Commissioner was therefore of the view that the organization had contravened section 19(1) of the Ordinance for failing to provide a copy of the Complainant's personal data contained in the dental records to the Complainant within 40 days after receiving the DAR.
2. Action by the PCPD
An enforcement notice was served on the organization directing it to provide the Complainant with a copy of the Complainant's personal data contained in the dental records.
3. Improvement Action by pca, if any
The organization had complied with the enforcement notice.
uploaded on web in February 2010