21 / 192
3.10
From the above, it appears that Condition B may be refined by the addition of the
following condition:
• the identity of the individual must be an important item of information
1
to the
collecting party (“Condition C”).
3.11
Indeed, before the Court of Appeal’s decision in the Eastweek case, the Commissioner
himself, and probably many others, had tended to interpret the term “collect” in a
purely mechanical sense, as meaning the act of physical acquisition and then applied
that meaning to the term “collection of personal data”.
3.12
In contrast, the three conditions arising from the Eastweek case seem to imply a
subjective element in the notion of collection of personal data. For Condition B to apply,
the collecting party must have already identified the individual in question or, at least,
must seek or intend to seek to identify the individual. Furthermore, under Condition C,
the identity of the individual must be an important item of information to the collecting
party.
3.13
As for the application of Condition A, additional reference may be found in the
following dictum in Ribeiro JA’s judgment (94I):
This entitlement (to make a data access request under DPP6) can only make sense if the data
user has
compiled the data collected in relation to each identified data subject
. [emphasis
added]
3.14
In most situations, Conditions B and C will follow simply as a corollary to Condition A. This
is because when one is compiling information about a certain person, it is usually
important to the compiler that the information regarding that person is not confused
with that regarding any other person. Hence, the “identification” of the person is more
often than not “an important item of information” to the compiler.
3.15
It is important to note that, while the Eastweek case, involving an anonymous individual,
was clearly a case where Conditions B and C were not satisfied, there can be other
cases where the identity of the individual is known, but Condition A is not satisfied. In all
these cases, by applying the rationale and tests laid down in the Eastweek case, the
result is the same in that there is no collection of personal data.
3.16
The importance of Condition A may be illustrated by the following examples. First, in the
case of the minutes of a business meeting on a particular subject matter being recorded,
information is compiled about that subject matter only, and usually there is no
compilation of information about any member or employee (whose identity is, of course,
known to the organisation) who spoke at that meeting, unless the subject matter
happens to be about the individual speakers. In AAB No. 24/1999, the complainant
made a data access request for a copy of minutes kept by the data user as records of a
meeting. The complainant attended the meeting and the subject matter covered in the
1
What is viewed as an important item of information is illustrated by Ribeiro JA in his judgment that the information shall
be such as would enable a search against the requesting individual’s name or other personal identifiers to yield an
answer to a data access request made under section 18 of the Ordinance, or to identify the data subject under section
30 (matching procedure) to obtain his consent, or to give the opt out choice under section 34 (now repealed and
replaced by Part 6A) when direct marketing activities are engaged in (93C to 94I of his judgment).