Case Notes

(AAB Appeal No. 12 of 2019)

Acknowledgement of receipt of letter by supplying signature – collection of the appellant’s signature was not unfair or excessive – the identity of the appellant was subsequently made known to the data user – reasons for not complying with the DAR not justified

Coram:
Dr LO Pui-yin (Chairman)
Ms FUNG Sau-yim (Member)
Mr LAU Ellis Ying-tung (Member)

Date of Decision: 19 February 2020

The Complaint

The Appellant lived in a public housing unit with his partner for some time. However, only his partner was the sole registered tenant of the unit. In 2014, a government department served on the unit a letter terminating the tenancy with the registered tenant (the “Letter”). At the material time, only the Appellant was at the unit and he acknowledged receipt of the said letter with his signature. The Appellant subsequently complained that this amounts to unfair collection of his personal data as he was not informed, on or before collection of his signature, the purpose of such collection.

Besides, the Appellant also made a total of four data access requests to the government department concerned relating to documents contained in some files (with the provision of some file references only) (“DAR”). However, the government department was unable to comply with three of the DARs for reason that the signatures contained in the DAR forms do not match with the specimen signature of the Appellant; and the Appellant had failed and/or refused to furnish his identity proof even upon repeated requests.

The Commissioner’s Decision

The Commissioner took the view that:-

1. The Letter was addressed to the registered tenant and copied to the Appellant. The Appellant’s signature was sought for the mere purpose of acknowledging receipt of the same but not for any other purposes. Hence, it was not necessary for the government department concerned to give explicit notification of whether it was obligatory or voluntary for the Appellant to supply his signature.
2. It was prudent and reasonable for the government department to refuse to comply with the first, third and fourth DARs as the Appellant had not provided his identity proof to the department for processing those three DARs and it was unable to ascertain the identity of the requestor.

Dissatisfied with the Commissioner’s decision, the Appellant lodged an appeal to the AAB.

The Appeal

Regarding the collection of the Appellant’s signature on the copy of the Letter, the AAB agreed with the Commissioner’s findings that the collection was an one-off collection for a lawful purpose directly related to the function and activity of the government department, which did not amount to unfair or excessive collection. Also, the Appellant’s signature was obviously obtained for acknowledgment purpose and there was no contemporaneous evidence suggesting that the copy of the Letter with the Appellant’s signature was used for other unrelated purposes.

Regarding the four DARs, the AAB only agreed with the Commissioner’s findings that the department was entitled to refuse to comply with the first DAR due to the failure of the Appellant in furnishing his identity proof. Nevertheless, the Appellant should have already been identified by the officers after the second DAR (with which the department had complied after verifying the requestor’s identity to be the Appellant by obtaining a copy of his Hong Kong Identity Card). The AAB therefore concluded that the government department should be able to process the third and fourth DARs as the problem of identifying the Appellant no longer existed.

Hence, the AAB considered that the Commissioner should have continued with the investigation for the third and fourth DARs.

The AAB’s Decision

The AAB considered that the Commissioner should have continued with his investigation about the third and fourth DARs and partly allowed the appeal.

(Uploaded in November 2020)