To follow up residents' complaints, a security officer took photographs of a security guard who was not in proper uniform during working hours without notifying him. In the circumstances of the case, the act of photograph taking by the property management company to gather evidence to prove that its staff had violated the company guidelines had not contravened any requirements of the Personal Data (Privacy) Ordinance ("the Ordinance").
The Complainant was a security guard who was being complained by residents that he did not put on proper uniform while having lunch in public area - the photographs were taken for filing by a security officer without notifying the Complainant - the property management company issued a warning letter to the Complainant demanding immediate improvement - the Complainant was subsequently complained for other reasons resulting in summary dismissal by the security company - whether the act of photograph taking by the property management company had contravened the Ordinance - DPP1(1), DPP1(2) and DPP1(3)
The Complaint
The Complainant was a security guard of a property management company ("the Company"). He was complained by residents that he did not put on proper uniform when having lunch at the ice-skating rink of the housing estate. Upon receipt of the complaint, the security officer and deputy security officer took photographs of the situation without notifying the Complainant. The Company then issued a warning letter to the Complainant. Later on, the Complainant was complained again for other reasons. As the Complainant had not shown any improvement, the Company dismissed him summarily. The Complainant believed that the Company took photographs of him without notifying him when he was having lunch and issued a warning letter to him because it intended to pave the way for dismissing him without any compensation in future. The Complainant thought that the Company’s act was inappropriate and unfair to him, so he lodged a complaint with the Privacy Commissioner.
Findings by the Privacy Commissioner
The Privacy Commissioner considered that the photographs taken by the Company were related to the activity of the Complainant during the working hours. It was obvious that the purpose of taking the photographs was to collect evidence showing the improper conduct of the Complainant during the working hours to support the issuance of warning letter to the Complainant. The Privacy Commissioner opined that the Company's act did not constitute unlawful or unfair collection of the data. Moreover, there is no provision in the Ordinance requiring a data user to notify a data subject or obtain the consent of the data subject before collecting his personal data. Therefore, the Privacy Commissioner decided to refuse to carry out an investigation pursuant to section 39 of the Ordinance. Dissatisfied with the Privacy Commissioner’s decision, the Complainant made an appeal to the Administrative Appeals Board ("AAB").
The Appeal
The Company appointed a representative to attend the hearing and provided information indicating that the Company had received a warning letter from the Crime Prevention Bureau of the Hong Kong Police Force, which informed them that their security guards did not dress in proper uniform and such act violated the licensing conditions. The Company therefore laid down guidelines requiring security guards to be in full uniform. The purpose of taking photographs of the Complainant was to follow up residents' complaints at the material times.
The AAB agreed that the Company could formulate guidelines requiring security guards to be in full uniform and demand staff's strict compliance in order to maintain the public image of its staff and to comply with the licensing conditions. Moreover, relevant personal data can be collected to monitor if security guards have violated the requirements of the guidelines when they are on duty. In this case, the purpose of taking the photographs was to consider if the Complainant had violated the guidelines and to file the work performance of the Complainant. Only when the complainant was not aware of the photograph taking activity could achieve such purpose. Therefore, the AAB considered that it was not practicable to notify the Complainant of the photograph taking activity in advance.
The AAB also agreed with the Privacy Commissioner's decision that the taking of photographs of the Complainant by the Company without notice did not contravene any requirements of the Ordinance, nor did it find excuse for avoiding giving payment in lieu of notice to the Complainant. Therefore, the AAB found that the Privacy Commissioner had exercised his discretion not to investigate or continue to investigate the complaint under section 39 of the Ordinance properly.
The AAB Decision
The appeal was dismissed.
uploaded on web in September 2010