13 / 192
Paragraph (c) — “in a Form in Which Access to or Processing of the Data is
Practicable”
2.26
Regarding paragraph (c) of the definition of personal data, the question as to the
meaning of the word “form” arose in a complaint to the Commissioner relating to a
data access request. In his decision, as one of the alternative grounds to support the
finding of no contravention, the Commissioner observed that, insofar as the requested
minutes of the meeting could not be located by the hospital to whom the request was
made, such minutes (even if they existed somewhere in the hospital’s records) might not
have satisfied the requirement in paragraph (c) of the definition of personal data to
constitute the complainant’s personal data at all. On appeal by the complainant to the
AAB in AAB No. 24/1999, the AAB expressed its view that the information contained in
the minutes was not personal data of the complainant and even if it were, there was no
evidence to suggest that the hospital had lied about its existence in refusing to comply
with his data access request.
2.27
The complainant then applied for judicial review of the decision of the AAB (Tso Yuen
Shui v. Administrative Appeals Board, HCAL 1050/2000) which was heard by Yeung J.
2.28
While upholding the AAB’s decision, Yeung J. commented on the alternative grounds
relied on by the Commissioner referred to above. In particular, he accepted the
complainant’s submission that the word “form” (appearing in the Chinese text as “
存在形
式
”) refers to the physical shape, structure, type, etc. of the data in question. The inability
of the hospital to locate the minutes in question had nothing to do with the form in
which the minutes might have existed.
2.29
In illustrating the point, Yeung J. cited an example in which the form of the data is
indeed relevant, that is, where the data user, although in physical possession of certain
computerised data, has no access to the decoder necessary for decoding encoded
data. Yeung J. also pointed out that other cases may be less clear, for example, where
certain minutes of a meeting exist in the form of a paper document, but are contained
in a time capsule buried 100 feet beneath a building.
2.30
On appeal by the complainant (CACV 960/2000), the decision of Yeung J. was
confirmed by the Court of Appeal. Accordingly, it is now clear that the mere
impracticability of locating certain data (which impracticability, however, has nothing
to do with the form of the data in the sense of their physical shape, structure, type, etc.)
does not prevent such data from being personal data according to its definition. The
word “form” is given a wider meaning, embracing not just the physical form of the data
but also its state of existence, which paradoxically seems closer to the meaning of the
Chinese text.
2.31
In AAB No. 52/2011, an ex-employee made a data access request to his then employer.
Some of the requested data was stored in a laptop computer which crashed, making it
difficult for the employer to retrieve the requested data without technical assistance.
The AAB took the view that although the employer had to engage IT experts to recover
the data contained in the back-up files of the computer and time and expense had to
be incurred, it could not be said that the personal data requested by the ex-employee