The Complainant could not provide prima facie evidence or information to prove that there might be a contravention of the Personal Data (Privacy) Ordinance ("the Ordinance"). The Privacy Commissioner's decision of not carrying out an investigation was correct.
An applicant for public service complained that the organization which handled his application had disclosed the fact that he had received psychiatric treatment - the complainant did not provide any prima facie evidence or information to support his complaint - before deciding to carry out an investigation, the Privacy Commissioner had to consider if there was any prima facie evidence supporting the complaint - sections 37(1)(b)(ii) and 39(2)(d) of the Ordinance
The Complaint
The complainant was an applicant for public service. In 2005, he reported to the organization which handled his application that he had received psychiatric treatment. He claimed that his neighbours had talked about his mental illness everywhere since 1997. He suspected that the organization had disclosed his mental illness to the said neighbours. Therefore, he lodged a complaint with the Privacy Commissioner.
Findings by Privacy Commissioner
The Privacy Commissioner had enquired the complainant many times about the complaint, but the complainant could not provide any prima facie evidence to support his allegation. The Privacy Commissioner opined that there was no prima facie evidence to prove that the organization had contravened the requirements of the Ordinance, so he decided to refuse to carry out an investigation pursuant to section 39(2)(d) of the Ordinance. Being dissatisfied with the Privacy Commissioner's decision, the complainant lodged an appeal with the AAB.
The Appeal
The AAB pointed out that the complainant disclosed his psychiatric treatment to the organization in 2005, but his neighbours had talked about his mental illness since 1997, so the complainant's allegation was illogical.
The AAB decided that as the complainant could not provide any evidence to prove that the organization might have contravened the requirements of the Ordinance under section 37(1)(b)(ii) of the Ordinance, the Privacy Commissioner's decision of not carrying out an investigation was not incorrect.
The AAB Decision
The appeal was dismissed.
uploaded on web in February 2010