The MPF trustees in administering the MPF schemes may have collected from third parties, such as the Official Receivers' Office ("OR") information about an employee member who was adjudged bankrupt. The MPF trustees enquired about whether the subsequent disclosure of the bankruptcy status of the employee to his employer is proper in accordance with Data Protection Principle ("DPP") 3 given that such bankruptcy notice having been advertised and published, has fallen into public domain.
Mandatory Provident Funds Authority ("MPFA") also approached PCPD raising similar enquiry. MPFA further mentioned that in many of these schemes, there is a contractual provision of "protective trust" which operates by transferring into it voluntary contribution upon the happening of an event of bankruptcy on the part of the employee member for the benefits of his dependents. The employer's right to set off the MPF contribution from the severance or long service payments under the Employment Ordinance will also be affected as a result as no sums paid into the protective trust accounts are subject to set off by the employer.
First of all, the PD(P)O does not exempt from its application personal data that have fallen into public domain. Thus, even though the bankruptcy order may have been gazetted, the use of such data by the MPF trustees is still governed by DPP3. The purpose of disclosure of the bankruptcy status by OR is relevant in determining the lawful perimeter of further use of these data. Disclosure as required by other statutes is generally accepted to be for a directly related purpose, however, no such statutory requirements on disclosure is found in the MPF Ordinance or other ordinances.
Since personal data relating to one's bankruptcy status is generally regarded as sensitive information, they should be handled with care, in particular when the MPF trustees intend to make further use of these data in performance of their other contractual duties under the schemes. In case of doubt, it is prudent practice for the MPF trustees to seek for the bankrupt employee's prescribed consent prior to disclosing his bankruptcy status to third parties. Given that the MPF contract is usually a document which the employee has little or no room for negotiation, the reliance solely on the contractual terms to establish a case of prescribed consent may prove difficult (the term prescribed consent is defined under the PD(P)O to mean consent expressly and voluntarily given). Prescribed consent of the bankrupt employee to be obtained on a case specific basis appears to be a better course of action to take.
If MPF trustees experience great difficulty in complying with the requirements of the PD(P)O in situations mentioned in the enquiry above in discharge of their contractual duties under the MPF schemes, MPFA may consider it appropriate to go for legislative amendments to remove once and for all any ambiguity encountered.