Appraisal of subordinates – assessment panels – data access request – membership list – attendance record – no useful purpose – motivated by personal feud – not related to concern for privacy – frivolous and vexatious – costs of the appeal
The Complaint
(a) Factual Background
The Appellant who was employed at the supervisory grade of a government department (“Department”) complained to Public Service Commission (“PSC”) that he was wrongfully excluded from taking part in the appraisal of his subordinates. PSC replied to the Appellant that a membership list (“List”) showed that he was one of the members of the relevant assessment panels.
Relying on the List provided by PSC, the Appellant made a data access request (“DAR”) to the Department seeking all his personal data as appeared in the List and the relevant attendance record. The Department replied that the Appellant did not serve on the assessment panels, and therefore the List did not contain his personal data. Dissatisfied with the reply from the Department, the Appellant lodged a complaint with the Commissioner stating that the Department had failed to comply with the DAR.
(b) Information obtained during investigation
The Appellant obtained from PSC a copy of the List with the personal particulars of other members omitted. There was a remark stating that “the list is an outdated version which was not adopted eventually”.
Upon enquiries, the Department explained that the List provided by PSC to the Appellant was merely “a preliminary list” and that the Appellant did not in fact attend the assessment meetings as he had already posted out when the meetings were convened. The Department produced certain reports showing the composition of the panels and the names of the members who attended the meetings. The reports showed that the Appellant was not a member of the panels. The Appellant confirmed himself that he did not attend the meetings of the assessment panels as he was not allowed to do so.
Findings of the Commissioner
Based on the information obtained, the Commissioner decided to exercise his discretion not to pursue the complaint based on the following two reasons:-
(i) PSC had already provided the Appellant with a copy of the List and therefore no useful purpose could be achieved by further investigation.
(ii) It appeared that the Appellant was motivated by personal feud or other factors not related to concern for his privacy or protection of his personal data.
The Appeal
At the appeal hearing, the Appellant argued that the List provided to him by PSC was not a “preliminary list” but was intended to be a final list. AAB took the view that whether or not the List was intended to be a final list was not relevant to the Appellant’s personal data privacy.
AAB upheld the Commissioner’s decision that the Appellant was merely anxious to discover some documentary proof to demonstrate that he was not serving as a member of the assessment panels rather than being genuinely concerned about his personal data privacy. There was also no evidence suggesting that the attendance record as alleged by him had ever existed.
In addition, AAB found that the Appellant had conducted the appeal in a frivolous and vexatious manner. In particular, AAB was of the view that the Appellant ought to have abandoned the appeal when he had obtained a copy of the full List before the appeal hearing.
The AAB’s Decision
Accordingly, the AAB dismissed the appeal and ordered the Appellant to pay 50% of the Commissioner’s costs of the appeal as assessed.
uploaded in March 2014