179 / 192
12.57
The burden of proof is not a particularly onerous one for a data user to discharge as he is
only required to prove that the application of those provisions of the Ordinance would
be likely to cause serious harm to the physical or mental health of the data subject or
any other individuals. No actual serious harm needs to be proven to have been suffered
by the data subject or any other individuals. Although section 59 does not spell out
whether the harm test mentioned therein is a subjective or objective one, in cases
brought before the Commissioner, due consideration is given to whether a reasonable
man in the circumstances of the case would come to the same conclusion as the data
user in question.
12.58
In a complaint case lodged against a Chinese herbal medicine practitioner who failed
to comply with a data access request by his patient for copies of the medical
prescriptions, the herbalist relied upon the section 59 exemption as grounds for refusal.
The Commissioner found that the exemption did not apply in the circumstances of the
case as the disclosure would not be likely to cause serious harm to the physical or
mental health of the data subject. On the contrary, the refusal to supply the information
on the medicines prescribed for the patient would be more likely than not to cause
harm to the requestor.
12.59
In AAB No.32 /2008, the complainant consulted a clinical psychologist for the purpose of
obtaining a psychological report to pursue a personal injury claim. The complainant
later made a data access request for copies of documents which included, inter alia,
some diagrams that were derived from questionnaires which she completed in the
course of consultation with the clinical psychologist. One of the issues before the AAB
was whether there was any basis for the clinical psychologist to refuse disclosure of the
diagrams under section 59(1) on the grounds that it “might cause [the complainant]
grave distress and increase her suicidal risk”. The AAB took the view that under section
59, the burden was on the clinical psychologist to show that disclosure of the diagrams
would be likely to cause serious harm to the physical or mental health of the
complainant. The AAB found the diagrams not to be comprehensible for untrained
persons without assistance of an expert. Accordingly, it could not be said that their
disclosure would likely cause serious harm to the physical or mental health of the
complainant.
12.60
Illustration of the application of section 59 is also found in a case in which an employee
expressed suicidal intent to his employer. From the staff records kept by the employer, it
was evident that he had been a patient of a psychiatric hospital. Led by the belief that
the person might cause serious physical harm to himself, the employer disclosed the
information to the psychiatric hospital for medical follow-up. The Commissioner was
satisfied that since the life and limb of the data subject was at stake, section 59 was
properly invoked to exempt the application of DPP3 to the personal data of that person
held by his employer.
12.61
In the case of AAB No.31/2012, the complainant was a teacher who complained
against the unlawful disclosure of her physical or mental conditions to her colleague by
the school whilst handling a dispute involving students. Both the complainant and the
colleague were involved in handling the dispute. The AAB agreed with the
Commissioner’s view that if her colleague had remained ignorant about the
complainant’s conditions and the fact that she took medication as a result of the