Personal data in bail forms - standard of accusing a particular person - reasonable suspicion, not bare allegations - time for adducing such evidence - DPP3
The Complaint
The complainant was one of the 12 defendants in a civil action ("the Action") and was on bail in relation to a criminal investigation. At a hearing of the Action, a plaintiff disclosed her employer's address to the other parties as ordered by the Court. As a future hearing date of the Action previously fixed clashed with her bail returnable date, the complainant applied for re-fix of the future hearing date and submitted her bail forms in support of her application. A few days later, the plaintiff's employer received from an unknown sender an envelope containing the complainant's bail forms.
The complainant complained that her bail forms were disclosed to a person unconnected with the Action without her consent in contravention of DPP3. The complainant named one of the defendants X in the Action as the person who made the disclosure.
Findings by Privacy Commissioner
The complainant advised the Privacy Commissioner that it could not have been the Court in the Civil Action or some of the defendants who made the disclosure because the Court and a defendant had denied making the disclosure, some defendants were X's employees, and a defendant did not always stay in Hong Kong.
The Privacy Commissioner noted that the inference drawn from the complainant was not supported by evidence and/or arbitrary and/or purely speculative. Even if the inference was properly drawn, there would still be no evidence that it was X who made the disclosure when the other defendants had also received the complainant's bail forms at the hearing.
The Privacy Commissioner considered that there was no prima facie evidence that X had contravened the Ordinance and, therefore, decided that an investigation was unnecessary.
The complainant appealed against the Privacy Commissioner's decision.The Appeal
The Board took the view that, before the Privacy Commissioner commences to investigate a complaint, there must be sufficient information to raise a reasonable suspicion that the person complained of had committed a contravention of the provisions of the Ordinance. Bare allegations of contravention would not be sufficient. The Board decided that the complainant had no reasonable basis to suspect that it was X who made the disclosure and the Privacy Commissioner's decision was, therefore, not wrong or unreasonable.
At the appeal, the complainant raised new information to the Board to the effect that only X's legal representatives, who also represented 6 other defendants in the Action, had both the bail forms and the address of the plaintiff's employer. Since such new information was not raised to the Privacy Commissioner when her complaint was being considered, that did not affect the correctness and reasonableness of the Privacy Commissioner's decision.
The AAB Decision
The Appeal was dismissed.
uploaded on web in January 2009