Complaint to the Ombudsman
8 May 2007
Dear Sir/Madam,
Under the Elections (Corrupt and Illegal Conduct) Ordinance (ECICO), the donor of any amount over HK$1,000 (US$128) must provide his name and address for a receipt, otherwise the donation cannot be used for election expenses. Those receipts, and a summary schedule of names, addresses and amounts donated, must then be filed with the Government within 30 days of the election using a standard return
Section 41 of the ECICO entitles anyone to go down to an office in Wanchai and inspect the returns, or obtain a photocopy on payment of HK$0.50 per page. I quote:
(3) If a person asks for a copy of an election return or part of a return kept under this section, the appropriate authority must provide the person with such a copy, subject to payment of a copying fee not exceeding an amount calculated in accordance with a rate fixed in accordance with subsection (4).
On 25-Apr-07 we exercised such statutory right, and asked for a copy of the election returns (without the supporting receipts) of the respective candidates for Chief Executive in the recent election.
The purpose of these filings on donations is obviously to provide transparency by enabling everyone to see which people and companies are financing election campaigns. For that purpose to be fulfilled, it must be possible to identify the donors from the information. In a shocking development, the Government has unilaterally blacked-out the addresses of the individuals who donated, leaving only their names, which are often far from unique.
The document provided to me by the REO in respect of each candidate was not a copy of the election return, but a copy of a censored, black-lined document derived from the election return, in which the addresses of individual donors had been deleted. So I submit that the REO has broken the law by failing to comply with section 41(3) of ECICO.
I checked with Alan Leong who confirmed that the returns he submitted complied with the law, that is, the addresses were not blacked out, and I assume the same is true of the other candidate, so this censoring was done by the Government. Mr Leong also confirmed that his office did not request the black-out.
By comparison, in 2005's uncontested election, the Government did not black-out donor addresses, many of which were office addresses anyway. Click on the links in this e-mail to see scanned versions of what I received.
The black-out makes it much harder to identify the individual donors. For example, how many people in Hong Kong are called "Richard Lee" or "Thomas Chan"? It makes a mockery of the whole exercise. If what they provided qualifies as a "copy" then it logically follows that even if they had blacked out the entire document, it would still qualify as a "copy". Clearly that would be nonsense. I was not given a copy of the return. I was given a copy of a black-lined document derived from the return.
Now you might be thinking that the Government will claim that the Personal Data (Privacy) Ordinance (PDPO) prevents them publishing the address. It doesn't, because the PDPO (which was already in force in 2005, the last time I obtained an uncensored election return) does not override other laws, such as the ECICO. We were not making a "data request" when we obtained the copy. We were exercising a statutory right to require one.
Also, even if the PDPO did apply, from a practical perspective, anyone who gives more than $1,000 to a politician's campaign should know that their donation and identity will be made public in an election return and that they are supplying the data for that purpose. The donor implicitly consents to the disclosure, and that is part of the trade-off for being able to donate money to politicians.
Please require the REO to rectify this by providing me with copies of the actual returns, not censored derivatives thereof.
Yours faithfully
____________
David M Webb
Update
After we filed the above complaint with the Ombudsman, the REO changed its mind, and provided us with copies of the original returns. The Ombudsman wrote in its response to us:
"we consider REO to have over-reacted...REO should have sought further legal advice, before introducing any change at all to election returns, as they are required for public inspection." (their emphasis)
Both the redacted and the clean copies of the filings can be found in the Election Disclosures section of Webb-site.com.
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