(AAB Appeal No. 26 of 2017)
Data access request – whether police had complied with – denial of receipt of document – whether document contained personal data – retention of CCTV footage - section 39(2)(d) – paragraph 8(h) of Complaint Handling Policy – no better result
Coram:
Mr. CHEUNG Kam-leung (Presiding Chairman)
Ms. POON Wing-yin (Member)
Ms. TONG Choi-cheng (Member)
Date of Decision : 26 September 2019
The Complaint
In November 2015, the Appellant reported to a police station about 20 odd harassing calls she received in the last three days. She was alleged to have handed over 2 pieces of A4-sized paper containing her written description of those calls at that time (the Document).
In order to obtain a copy of the Document, subsequently the Appellant submitted her data access request (1st DAR). In reply, the police sent her a letter providing details of her previous report on the harassing calls, but the police failed to address whether they were in possession of the Document. The Appellant made another data access request (2nd DAR) in March 2017 seeking the Document, and the police gave the same response.
The Commissioner's Decision
After the Commissioner’s intervention, the police confirmed in writing that they had never received any document from the Appellant on the day she reported the harassing calls in November 2015. Nor were they able to retrieve the relevant CCTV footage of the police report room on that day, given a lapse of nearly two years.
The Commissioner finally decided not to proceed with the complaint on the following grounds :-
(1) The Appellant was only entitled to a copy of her personal data, but not otherwise.
(2) This case concerned the dates and times of those harassing calls without showing the caller’s identity. As such, the document did not contain the Appellant’s personal data and the police was not obliged to comply with her DARs.
Dissatisfied with the Commissioner's decision, the Appellant lodged an appeal to the AAB.
The Appeal
The AAB affirmed that the Commissioner was entitled to make his decision not to proceed with the Appellant’s complaint and responded to the Appellant’s major grounds of appeal as follows :-
(1) There was a lack of objective evidence for the Commissioner to proceed to investigate if the police retained the relevant CCTV footage recorded two years ago.
(2) Given that the police confirmed that they had never received the Document, the Commissioner considered that the subject matter of the complaint was resolved and further investigation of the case could not reasonably be expected to bring about a more satisfactory result. Under such circumstances, the Commissioner’s decision not to pursue the complaint any further could not be regarded as unlawful or unreasonable.
(3) The Commissioner was unable to verify if the Document did contain the Appellant’s name and signature as alleged by her, in light of the police’s denial of ever receiving it.
The AAB's Decision
The appeal was dismissed.
(Uploaded in March 2020)