Personal Data (Privacy) Law in Hong Kong – A Practical Guide on Compliance

DPP6 and section 18(1)(b) personal data consisting of information relevant to a staff

planning proposal to:

(a) fill any series of positions of employment which are presently, or may become, unfilled;

(b) cease any group of individuals’ employment. . . .

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It is clear that the drafting of this section is not intended to apply to any single position

occupied by a particular employee, which would instead potentially fall within the

scope of section 55. Section 53 applies to staff planning in general which concerns a

series of positions or employment of a group of individuals. It is therefore only in a staff

planning situation within the scope contemplated by section 53 that the employer can

avail itself of this exemption and refuse to accede to a data access request made by a

data subject. Furthermore, the Commissioner takes the view that section 53 should not

apply where the data user merely anticipates possible staff planning in the future.

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Section 54(1) is a seven-year transitional provision that expired on 3 August 2002. The

practical effect of section 54(1) was that it exempted from application of DPP6 and

section 18(1)(b) employment-related personal data held by the employer before 20

December 1996 (i.e. the date on which the Ordinance first came into operation), which

was provided by the individual on the implicit or explicit condition that the data subject

would not have access to the data. This transitional provision aimed to give employers

time to adjust and familiarise themselves with the requirements introduced by the

Ordinance without causing them undue hardship.

Section 55 — Relevant Process

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Section 55(1) provides as follows:

(1) Personal data the subject of a relevant process is exempt from the provisions of data

protection principle 6 and section 18(1)(b) until the completion of that process.

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“Relevant process” is in turn defined in subsection (2) as follows:

“relevant process” –

(a) subject to paragraph (b), means any process whereby personal data is considered by

one or more persons for the purpose of determining, or enabling there to be

determined –

(i) the suitability, eligibility or qualifications of the data subject for –

(A) employment or appointment to office;

(B) promotion in employment or office or continuance in employment or office;

(D) the awarding of contracts, awards (including academic and professional

qualifications), scholarships, honours or other benefits;