Compliance of the DAR of the Complainant was refused - the requested data did not satisfy the definition of "personal data" under section 2(1) of the Ordinance - the Complainant did not have prima facie evidence to show that the relevant data user held the data he requested - Privacy Commissioner refused to investigate the "complaint" – definition of "personal data", section 18(1)(b), DPP6
The Complaint
The Complainant sent a DAR form to a public organization, requesting for the original copy of a report ("the report") in which the variety and the height of the crops grown on his land were recorded. According to the organization, as the Complainant could not provide sufficient information for it to handle his DAR, the organization could not provide the data requested by the Complainant. The Complainant complained to the Privacy Commissioner that the organization had contravened the Ordinance since it had not complied with his DAR by providing him with the report.
Findings by Privacy Commissioner
During the Privacy Commissioner's preliminary enquiry, the organization told the Privacy Commissioner that it did not hold the report. After further enquiry, the Complainant still could not provide prima facie evidence to show that the organization held the report. The Privacy Commissioner also found that the report did not contain any personal data of the Complainant. According to the Complainant, the report, which contained data on the variety and the height of crops, related to the compensation items and amount that he should be entitled to in a land resumption exercise.
The Privacy Commissioner considered that, as the Complainant did not have any evidence to show that the organization held the report, the organization was not the "data user" under the Ordinance and did not need to comply with the DAR of the Complainant. Moreover, the information contained in the report did not satisfy the definition of "personal data" under section 2 of the Ordinance. Therefore, the Privacy Commissioner refused to investigate the complaint.
Dissatisfied with the decision of the Privacy Commissioner, the Complainant lodged an appeal with the Administrative Appeals Board.
The Appeal
The Administrative Appeals Board pointed out that, although the report contained the name of the Complainant and the address of his land, information about the crops was just the opinion of the recorder on the crops on the land. As it was not practicable to ascertain the identity of the Complainant either directly or indirectly from the information about the crops, the report was not the "personal data" of the Complainant.
The Board agreed with the view of the Privacy Commissioner and pointed out that under section 18(1)(b) of the Ordinance, the data subject could only get a copy of his personal data requested in his data access request and he was not entitled to be supplied with the original copy of his personal data.
The AAB Decision
The Appeal was dismissed.
uploaded on web in January 2009