(AAB Appeal No. 27 of 2017)
This case related to section 60B(c) of the Ordinance. In response to a complaint investigation by a regulatory body, a church disclosed the personal data of the complainant’s wife to the regulatory body. It reiterated that section 60B(c) of the Ordinance should not be restricted to situations where legal proceedings, legal claims or complaints have been commenced or lodged against the relevant data user. It is also applicable to any appropriate prophylactic actions to be taken by the relevant data user to prevent the situation from ballooning into a formal dispute.
Coram:
Mr. Cheung Kam-leung (Deputy Chairman)
Dr. Cheung Chor-yung (Member)
Ms. Poon Wing-yin (Member)
The Complaint
The Appellant and her husband were members of a church in Hong Kong (Church). Due to disagreement between the couple and other members of the Church, the couple was only allowed to attend limited activities of the Church.
The husband subsequently lodged a complaint with the Equal Opportunities Commission (EOC) alleging that the Church imposed such restriction on him due to his medical condition. In response to EOC’s request for details of cases in which the Church imposed similar restriction on other church member without such medical condition, the Church mentioned a number of past improper conducts of the Appellant to substantiate the Church’s action.
The Appellant considered that the matters disclosed were irrelevant to her husband’s EOC complaint. Revealing her identity to EOC was also unnecessary especially when EOC has already suggested the Church to anonymise an individual’s name in its response. Hence, the Appellant lodged a complaint with the Privacy Commissioner.
The Commissioner’s Decision
Upon completion of the investigation of the complaint, the Commissioner was of the view that the Church’s disclosure of the Appellant’s personal data to EOC was necessary for EOC to deal with some of the allegations in her husband’s complaint to EOC which also involved the Appellant as a victim.
In addition, the exemption under section 60B(c) of the Ordinance applied to the present case where the Church disclosed personal data in the course of defending its rights in an investigation conducted by EOC under the Disability Discrimination Ordinance.
The Commissioner considered that there was no contravention of the requirements under the Ordinance by the Church. The Commissioner then exercised his discretion not to investigate the matter further pursuant to section 39(2)(d) of the Ordinance. Dissatisfied with the Commissioner’s decision, the Appellant lodged an appeal to the AAB.
The Appeal
The AAB agreed with the Commissioner that in the husband’s complaint, majority of the information submitted to EOC by the Appellant’s husband involved himself and the Appellant. Therefore, it was necessary for the Church to disclose to EOC the reasons and details of the restriction imposed on the Appellant to attend Church activities to rebut the case.
The AAB also noted that the Church exercised its right under the Disability Discrimination Ordinance to submit information (including the disclosure of the Appellant’s personal data) for EOC’s consideration to prevent any adverse decision being made against it or any possible claim being lodged against it by the Appellant’s husband. This is considered by AAB to fall within the exemption of using the personal data for “establishing, exercising or defending legal rights in Hong Kong” under section 60B(c) of the Ordinance.
The AAB further adopted the ruling in AAB Appeal No. 55 of 2014 that section 60B(c) of the Ordinance applies to situation where the relevant data user would like to take appropriate prophylactic actions in a bid to prevent the situation from ballooning into a formal dispute.
The AAB’s Decision
The appeal was dismissed.
(Uploaded in March 2019)