An employer charged an excessive fee for complying with an employee’s data access request
The Complaint
The Complainant made a data access request (the “DAR”) to his employer for a copy of his appraisal report. His employer imposed a flat-rate fee (HK$50 per page) on a requestor and charged the Complainant HK$200 for an appraisal report of four pages. The Complainant considered the fee to be excessive.
Outcome
According to the principles laid down by the Administrative Appeals Board in Administrative Appeal No. 37/2009, a data user is allowed to charge a requestor only for costs which are “directly related to and necessary for” complying with a data access request. A data user should not charge a fee on a commercial basis. Any fees that exceed the costs of compliance would be considered excessive.
As the charge of HK$200 for four pages appeared, on the face of it, to be exorbitant, the burden was on the Complainant’s employer to prove that the fee of HK$200 it had charged was not excessive. However, the Complainant’s employer failed to provide details of the basis of the flat-rate (HK$50 per page) or justify how the amount of HK$200 was cost-related to the compliance of DAR.
After the Commissioner had explained the requirements under Section 28(3) of the Ordinance and the principles laid down in Administrative Appeal No. 37/2009 to the Complainant’s employer, the flat-rate to HK$2 per page was charged instead and a total of HK$192 was refunded to the Complainant.
(Uploaded in September 2016)