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(ii) whether any contract, award (including academic and professional qualifications),
scholarship, honour or benefit relating to the data subject should be continued,
modified or cancelled; or
(iii) whether any disciplinary action should be taken against the data subject for a
breach of the terms of his employment or appointment to office;
(b) does not include any such process where no appeal, whether under an Ordinance or
otherwise, may be made against any such determination.
12.19
In other words, before the determination of the relevant process, the data user may
refuse to comply with a data access request by invoking this exemption provision. As
soon as the relevant process is completed, the exemption will no longer be available to
the data user. However, it should be noted that pursuant to subsection (2)(b), this
exemption does not apply to cases where the data subject has no right to appeal
against any such determination.
12.20
The meaning of “appeal” in section 55(2)(b) was considered in a complaint in which the
employer refused to comply with a data access request made by an employee based
on the exemption under section 55(2)(b), as the employee had a right to appeal
against the decision made against him in the relevant process. The appeal referred to
was in fact a possible review by the Chief Executive of his own decision. The
Commissioner came to the view that neither the type of review mentioned nor the
limited form of judicial review by the Courts in respect of the determination made
pursuant to the relevant process, would constitute an appeal within the meaning of
section 55(2)(b). For these reasons, the employer was not entitled to rely on the
exemption and had to comply with the data access request.
Section 56 — Personal References
12.21
Section 56 concerns personal data held by a data user which consists of a personal
reference:
(a) given by an individual other than in the ordinary course of his occupation; and
(b) relevant to another individual’s suitability or otherwise to fill any position of employment
or office which is presently, or may become, unfilled, . . .
12.22
In order to ensure that personal references are given without fear of being accessed by
candidates prior to the determination of the selection process and being disputed as to
the accuracy of the contents (which in most cases will comprise subjective personal
comments or opinion), section 56 provides for an exemption from the application of
DPP6 and section 18(1)(b) unless the person who gave the reference:
(i) . . . has informed the data user in writing that he has no objection to the reference
being seen by the individual . . . (or words to the like effect); or
(ii) in the case of a reference given on or after the day on which this section comes into
operation, until the individual . . . has been informed in writing that he has been
accepted or rejected to fill that position or office (or words to the like effect),
whichever first occurs.