Case Notes

The Complaint

Summary of Facts

The Complainant was a patient of a private hospital (the “Hospital”). She lodged a complaint with the Hospital in 2011 as she considered her privacy was intruded by the presence of male non-medical staff in the operating room of the Hospital for the colonoscopy. Dissatisfied with the Hospital’s reply, the Complainant submitted a data access request to the Hospital on 20 December 2012 for copies of “all data, including any recording, and including medical notes, concerning the data subject’s consultation with Dr [X], colonoscopy and subsequent complaint…”(the “DAR”).

At the Hospital’s request, the Complainant paid HK$3,250 (including HK$ 1,300 for the Hospital administrative fee, HK$ 1,300 for copies of inpatient records and HK$ 650 for copies of outpatient records, collectively the “Fee”) and was supplied with 9-page copies of her medical records (the “Medical Notes”). The Complainant complained to this Office against the Hospital for imposing an excessive fee for the DAR.

Information provided by the Hospital

• The Fee covered the labour costs involved in processing the DAR and it did not include any overhead cost;
• The “Hospital administrative fee” (HK$ 1,300) reflected the Hospital’s out-of-pocket expenses for performing the procedures in relation to the handling of data access request;
• A flat fee for “Copies of inpatient records-HK$1,300” and “Copies of outpatient records-HK$650” would be charged irrespective of whether the request is complicated or simple, and regardless of the number of pages of records processed;
• The Hospital stressed that while the primary duties of its staff were to attend to the clinical care of patients and/or the day-to-day management of the Hospital, any estimation of the hourly charging rate would be wholly artificial and would not be a true reflection of the labour costs in complying with the DAR;
• The Hospital stated that given the lapse of almost two years between the date of the Complainant’s discharge from the Hospital and the date of the DAR, the Hospital was required to trace and retrieve the relevant records from a storage facility in Yuen Long, properly check the records to ensure their completeness and accuracy, as well as copying the records before they were dispatched to the Complainant;
• In the course of our investigation, the Hospital had refunded the Fee to the Complainant on a without admission of liability basis under the Ordinance.

Outcome

• According to the principle laid down in the decision of the case of Administrative Appeal No. 37/2009, a data user is only allowed to charge the requestor for the costs which are “directly related to and necessary for” complying with a data access request. A data user should not charge a fee on a commercial basis. Any fee that exceeds the costs of compliance will be considered as excessive;
• The Commissioner is of the view that the charge of HK$3,250 for 9 pages of documents is on the face of it extravagant. The burden lies on the Hospital to prove that the Fee it charged is not excessive. However, all along the Hospital is silent about the basis of imposing the Fee at a flat-rate, which is apparently not nominal (HK$ 3,250 for 9-page copies of medical records). The Hospital had also not made estimate or calculation to in relation to its minimum time costs for processing a data access request in general when fixing the flat-rate fee;
• Taking into account that the Medical Notes (9 pages) only concerned the Complainant’s medical records over a very short period of time (26 and 27 January 2011) and the Hospital should have a proper indexing system for patients’ medical records, the Commissioner find it hard to imagine that the Medical Notes were located by the staff after an extensive search over a long period of time;
• As the Hospital failed to provide the breakdown of the labour costs incurred for complying with the DAR as far as the Medical Notes (9 pages) are concerned or its policies/procedures governing how the Fee should be calculated according to the direct and necessary costs incurred for complying with the DAR, the Commissioner considered that the Hospital has failed to discharge its burden of proof that the Fee imposed is not excessive.

(Uploaded in October 2015)