AAB satisfied with the Privacy Commissioner's finding of facts on insufficient evidence after summoning and examining witnesses so that rehearing of witnesses again was unnecessary.
Complainant alleged his colleague to have collected and retained a faxed statement of his - witnesses summoned to give evidence on facts - evidence insufficient to prove retention by the colleague - DPP1(2) and DPP2(2)
The Complaint
The complainant worked for a government institution. In an evening, an assault occurred and the complainant was a witness to the incident. A report was made to a law enforcement body and the complainant was asked to give a statement to the law enforcement body. Subsequently, as per the request of the complainant, the law enforcement body faxed a copy of his statement to the General Office of the complainant's serving department but was allegedly collected and kept by his colleague instead. Complainant claimed that when he asked for this statement the next morning, his colleague said that he was instructed by his superior to take the faxed statement and the complainant was only allowed to make a photocopy. The complainant alleged that his colleague had wrongfully retained the statement and lodged a complaint with the Privacy Commissioner. The colleague disputed the allegations and confirmed that the faxed statement was given to the complainant.
Findings of the Privacy Commissioner
During the course of this investigation, the Privacy Commissioner summoned the complainant, his colleague who allegedly kept a copy of this statement, and some other individuals concerned with the complaint to an examination under oath which he was empowered to do under section 44 of the PDPO. The Privacy Commissioner decided after carrying out the investigation and the above examination that there was insufficient evidence to prove that the colleague had indeed taken away the statement and then kept a copy of it as alleged by the complainant. Therefore, the Privacy Commissioner found that there was no contravention of DPP1(2) or DPP2(2).
The Appeal
The complainant was of the view that the Privacy Commissioner had wrongly accepted the evidence given by the individuals, in particular, his colleague. He therefore appealed and sought to call two new witnesses during the appeal proceedings.
After hearing the appeal, the AAB decided that in light of the very full extent of the examination of the relevant witnesses, there was no reason for the Board to exercise its discretion to allow new witnesses to be called when the complainant had proffered no adequate reason to explain why he had not suggested that these two witnesses be summoned for questioning at the previous examination by the Privacy Commissioner. The AAB further held that there was no defect or deficiency in the scope or mode of investigation undertaken by the Privacy Commissioner. In view of the sworn evidence before him, the Privacy Commissioner was entitled to come to the view that the colleague had not taken or retained the faxed statement. The issue here was essentially one of credibility in a dispute of fact. The AAB did not consider it necessary or desirable to re-hear the relevant witnesses for the purpose of making separate findings of fact taken into account the depth and detail of investigation already undertaken by the Privacy Commissioner.
AAB's decision
The AAB unanimously dismissed the appeal.