Small claims action regarding administrative matters - Incorporated Owners publicly posted a notice of hearing containing the name and address of the Complainant - the notice was removed within 45 days after the complaint had been lodged - disclosure of the owner's address and surname was sufficient - Privacy Commissioner's decision of not to investigate - consideration factors - contravention terminated - issuance of advisory letter - satisfactory result - DPP3 - sections 39(2)(d) and 39(3)
The Complaint
The Appellant was a resident of a building. The Incorporated Owners ("IO") of the building brought a small claims action against the Appellant in respect of a dispute regarding the long service payment to cleaning workers. The Appellant complained that the IO had improperly posted a notice of action containing his name and address in the building on 17 June 2007. He alleged that the IO had targeted at him because the IO only posted the notice of action against him, but not those against other owners. He believed that he was treated unfairly, so he lodged a complaint with the Privacy Commissioner.
Findings by the Privacy Commissioner
The Privacy Commissioner considered the IO's explanation that the document was posted to inform all the owners of the details of the small claims action. The IO explained that it, as the legal representative of all the owners, was responsible for the management of the whole building, including representing all the owners to proceed any legal action to claim the expenses relating to the management of the building. Therefore, it bore the responsibility for informing all the owners of the identities of the defendants of the cases proceed on their behalf. The IO explained that the posting of the document in the building lobby was consistent with its duty and the purpose of such act was to handling claims. Moreover, the IO had removed the document during the enquiry stage of the Privacy Commissioner. After considering all the circumstances of the case, including the cessation of the suspected contravention (the IO had removed the document on 6 July 2007 after full settlement of the small claims action), and the advice the IO to handle owners' personal data carefully in future, the Privacy Commissioner believed that no better results would be reasonably achieved even if an investigation was carried out. Thus, the Privacy Commissioner decided to exercise his discretion not to investigate the complaint under section 39(2)(d). The Privacy Commissioner informed the Appellant of his decision in about 75 days upon receipt of the complaint.
The Appeal
The Appellant's grounds of appeal included: (i) the Privacy Commissioner did not provide sufficient grounds for supporting his decision; (ii) the Privacy Commissioner should not consider section 26A (Note 1) of the Building Management Ordinance put forward by the IO as reason because section 26A had not been effective when the complaint arose; and (iii) it was inappropriate for the Privacy Commissioner to make his decision after the prescribed 45-day limit of section 39(3) of the Ordinance.
The AAB considered that the posting of the Appellant’s name and address by the IO and the management company under the circumstances of the case might have contravened DPP3 of the Ordinance. The claim form of the small claims case contained the Appellant's name and address, which were personal data. The IO and the management company should be careful in the use (as well as the release) of the data according to DPP3. Before a judgment was delivered, it was inappropriate to post the document in the building for public (including non-residents) reading because such act directly published the Appellant's personal data. This was also not a good practice in building management. The Board opined that as section 26A of the Building Management Ordinance became effective on 1 August 2007, it was not applicable to the day on which the document was posted. Moreover, the Board criticized the act of the IO and the management company in delaying to reply to the Privacy Commissioner's enquiry so as to handle the action. The Board believed that the IO had the responsibility for cooperating with the Privacy Commissioner by replying to his enquiry about the reasons for the disclosure of the claim form within 45 days. In studying the circumstances of the case, the Board was of the view that as the notice was removed in 45 days after the complaint had been lodged, the Appellant would not suffer more harm afterwards.
Although the act might have contravened DPP3, in view of the Privacy Commissioner's consideration that the claim form had been removed when he handled the complaint and the issuance of a warning letter to advise the IO and the management company to carefully handle the posting of claim forms containing personal data in public in compliance with the Ordinance, the Board did not foresee that a better result could be achieved even if the Privacy Commissioner continued to investigate the complaint. The Board therefore agreed with the Privacy Commissioner's decision of refusing to carry out an investigation under section 39(2)(d) of the Ordinance.
The Board did not need to decide on the applicability of section 26A of the Building Management Ordinance in this case, but the Board believed that section 26A had no direct conflict with the Ordinance. The Board opined that the legislative intent of section 26A was to inform the owners of the legal proceedings for the purpose of better building management but not for the punishment of the owner concerned in public. Therefore, if the address but not the full name of the person related to the legal proceeding was disclosed, the Board did not consider that there must be a contravention of the requirement of section 26A.
The AAB Decision
The appeal was dismissed.
Note 1: Section 26A stipulates that a management committee shall display a notice containing the particulars of the proceedings in a prominent place in the building within 7 days of receiving any court documents commencing the proceedings, and cause the notice to remain so displayed for at least 7 consecutive day.
uploaded on web in September 2010