Case Notes

(AAB APPEAL NO.17/2017)

Photos did not contain the Appellant’s facial image– definition of personal data – in a form in which access to or processing of the data is practicable – conversations did not amount to personal data under the Ordinance – a lapse of two years between the incident and the complaint

Coram:
Mr CHEUNG Kam-leung (Presiding Chairman)
Mr Ernest CHAN Ho-sing (Member)
Mr HASSAN Ka-chun (Member)

Date of Decision: 22 October 2020

The Complaint

A government department (“the Department”) received complaints of defecation found at the common area of a residential estate. An officer of the Department (“the Officer”) was tasked to look into the matter including to visit the floor in which the defection was found.

The Appellant lived in that floor and was visited by the Officer at the material time. The Appellant complained that the Officer took photos of his flat (“the Flat”), which depicted his facial image. The Appellant also complained that the Officer talked to him aloud outside his flat, which passers-by may overhear their discussion containing the Appellant’s personal data. Subsequently, the Appellant was invited for a discussion in the estate’s management office of the Department, but he complained that the conversation between him and the Officer was not conducted in a private manner.

The Appellant complained to various department and bureaux; and lodged a complaint against the Department to the Commissioner some two years after the incident.

The Commissioner’s Decision

Regarding the complaint of taking photos, the Commissioner was unable to find any contemporaneous evidence, such as photo(s) taken by the Officer depicting the facial image of the Appellant. Conversely, the Department provided photos taken at the material time outside the Flat without capturing any facial image as alleged or any area inside the Flat.

Regarding the conversation between the Officer and the Appellant outside the Flat and in the management office, such discussion fall short of the definition of “personal data” under section 2(1) of the Personal Data (Privacy) Ordinance (“PDPO”) as the discussion was not in “a form in which access to or processing of the data is practicable”. It follows that the Ordinance, including the Data Protection Principles under Schedule 1 thereof, has no application.

The Commissioner decided to terminate the investigations under 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 endorsed the Commissioner’s decision not to pursue the complaint any further for reason that:

1. there was no contemporaneous evidence indicating that the Officer had taken any photos of the Appellant and/or his family members. In the absence of “collection” of personal data by the Department, the Ordinance has no application.
2. the oral discussions between the Appellant and the Officer, as well as the subsequent discussion at the management office did not amount to “personal data” under the Ordinance. To constitute “personal data”, it must be recorded in a form which could be accessed to or processed. In any event, the Appellant failed to provide any evidence indicating that there were other persons who overheard their discussions, thereby resulting any “leakage” of personal data as alleged or at all. The protection afforded by the Ordinance, including the Data Protection Principles, does not apply.

As a side note, the AAB emphasised that given a lapse of time for some two years since the happening of the incident, it posed considerable difficulties for the Commissioner to conduct an efficient and effective investigation as any evidence retained, if any would have gone. The recollection by any witness regarding the factual circumstances of the case would also be difficult, if not impossible. The AAB therefore shared with the Commissioner’s aforesaid opinion expressed towards the end of the AAB’s decision in terminating the investigations under section 39(2)(d) of the Ordinance.

The AAB’s Decision

The AAB upheld the Commissioner’s decision and dismissed the appeal.

(Uploaded in February 2021)