Microfiche Issue, lets get this sorted

[Cpt Black]

Hi, I post this here because its both relevant to Abbey and Barclaycard as far as I'm aware.

To those who aren't aware, these banks/credit card companies are using an argument against supplying data (statements in this case) from before May 2004 in that the data has been moved to a microfiche system, which under the Data Protection Act - 1998, is not a relevant filing system.

From the data Protection act, section 1 paragraph 1:

"relevant filing system" means any set of information relating to individuals to the extent that, although the information is not processed by means of equipment operating automatically in response to instructions given for that purpose, the set is structured, either by reference to individuals or by reference to criteria relating to individuals, in such a way that specific information relating to a particular individual is readily accessible.

Can be seen here:
Data Protection Act 1998

You may wish to catch up on the official definition of 'Personal Data' or 'Data' - Same thing here

The three cases which have been banded about regarding this are:
Durant V FSA
in full
http://oxcheps.new.ox.ac.uk/casebook...S%23150A78.pdf
in summery
http://www.ico.gov.uk/documentUpload...mmary%2022.pdf

Smith v Lloyds
http://www.hmcourts-service.gov.uk/j...h-v-lloyds.htm

Johson V Somebody
Unsure of this one, can someone pass on the URL and Defendant?

In the durant case, the relevant parts are from page 10, paragraph 32 although I need to make headway with it and will post my findings in due time.

I would caution against using the Smith case as the argument used by Smith is that as the data was once processed by a computer was once 'data' and therefore 'personal data' then and covered under the Data Protection Act as being Partly processed by computer now, but this is thrown out of the next few paragraphs (read from 14-17ish)

The other thread where I proposed some earlier research which you may find interesting is
Hope this might be of help...

[Cpt Black]

By the way, I propose this thread to find a specific reply to the intial reply saying they can't go back further than May 04 with the last 2 years of statements.

It may not work and everyone affected may have to sue the relevant company for a breach in the Data Protection Act but hopefully they will wise up

Cheers
Cpt Black

P.S. If we get a tested, working answer it may be worth changing the standard Data Protection Act letter to include "Don't even think about not giving me all the data!! Grrr"

[Cpt Black]

Ok, reading the stated parts of the Durant case, from paragraph 32, up to and including 36

32 states, quoting Article 2(c) of thte directive (which is similar to the Data Protection Act, but I think is the European court version - please correct ASAP if I'm wrong):

"'personal data filing system' ('filing system') shall mean any structered set of personal data which are accessible according to specific criteria, whether centralised, decentralised or dispersed on a functional or geographical basis;"

Recitals 15 is also worth reading as it elaborates more on the processing of the data.

the 'Specific Criteria' mentioned in recital 15 needs researching, I will look at it shortly.

There is a neat paraphrase at the end of paragraph 33 for relevant filing system.

Basically, in para 34, the judge decides on the criteria for a filing system to be 'relevant' saying it has to be organised in the same way as a computer database would.

in para 35 the judge then systematically questions each of the 4 manual files Durant is asking for and decides that each is not constituted a 'relevant filing system'


Now this sounded pretty bad when I read it, however, in the Submissions starting para 36 (could someone explain the meaning of a submission in a court case, is it a review and the findings and corrections of an appeal hearing?)

Miss Houghton found the judge gave too narrow a meaning to the ("too restrictive a test") and even said

the Judge mistook the meaning of the word "set" in the phrase "set of information" in the Act's definition. She submitted that "set" in this context meant, not an individual file and its structure or lack of, but the whole filing system of which it was a part. It was enough she argued, to show the existence of a filing system in which particular types of documents may be found, for example in an individual file identified by reference simply to the data subject's name.

(excuse any spelling errors there, was touch typing it)
This I take to mean that regardless of how an individual file is organised (eg. a bundle of papers) if the whole filing system is refereced by data subjects' names, then the whole system is relevant.

Ok, thats enough for the moment, I will read on and post more findings as and when!
Feel free to offer your own opinions please!

Cpt Black

[Cpt Black]

Ok, possibly finally on the Durantcase, I have read up to para 40, and 46.

More on an indiviual file can be loose leaf as long as the file itself is easily accessible as the data controller can look through the individual file and select the necessary records. This I think is critical in relation to microfiche: undoubtably the microfiche reels are indexed completly and therefore individual reels can be selected and the appropriate data taken from them.

There is also a useful note that a manual filing system "could not be expected to have the same level of sophistication as a computerised system" (para 3

In the same para, she goes on to say, the original judge expected a manual system to have "the same level of sophistication as that of a full-text search facility on a computer, an outcome the definition . . . could not sensibly require." (hooray for common sense!)

Para 41 says an expert witness said in some detail: manual filing systems do not index particular documents within individual files or finding specific information about an individual other than examining an individual file and reading through it

Ok, I'll skip to 46 - in the conclusions:

As to the 1998 Act, to constitute a "relevant filing system" a manual filing system must: 1) relate to individuals; 2) be a "set" or part of a "set" of information; 3) be structured by reference to individuals or criteria relating to individuals; and 4) be structured in such a was that specific information relating to a particular individual is readily accessible. . . .

microfiche files adhere to the first 3 points, however it may fall down on the fourth (I hope not after is this work!)

4) be structured in such a was that specific information relating to a particular individual is readily accessible. . . .

The questions arises that is the data readily accessible, ie. how easy is it to convert the film into a paper copy

Discuss please - I'm going to get a cup of tea!

Cpt Black

[Cpt Black]

for inclusion in the letter, something along the lines of:

With regard to your letter stating that the "microfiche system" is not a "relevant filing system" I draw your attention to the case of Durant vs Financial Services Authority 2003, of which I am sure your legal team are aware of. The findings of the appeal state in paragraph 46: "As to the 1998 Act, to constitute a "relevant filing system" a manual filing system must: 1) relate to individuals; 2) be a "set" or part of a "set" of information; 3) be structured by reference to individuals or criteria relating to individuals; and 4) be structured in such a was that specific information relating to a particular individual is readily accessible."

With the microfiche system in mind, this adheres to all of these criteria and therefore must be considered a relevant filing system.

I also draw your attention to paragraph 36 stating "the Judge mistook the meaning of the word "set" in the phrase "set of information" in the Act's definition. She submitted that "set" in this context meant, not an individual file and its structure or lack of, but the whole filing system of which it was a part. It was enough she argued, to show the existence of a filing system in which particular types of documents may be found, for example in an individual file identified by reference simply to the data subject's name."

Hopefully this clarifies my position on the matter of the microfiche issue. From the date of my original letter, I calculate that you have until the (date) to supply me with the rest of the statements predating May 04, else I shall be sending you a Letter Before Action, giving you 14 more days to comply and ultimatley I will start legal preceedings claiming for a breach of the Data Protection Act 1998 and then continuing with my original claim for the bank charges upon the cases completion.

This may be too much detail, and I am very unsure of a) the submission is infact the appeal part and can be used, and b) the document I'm referring to, is it the actual document that can be used in court as evidence of the Durant case??

Cpt. Black

[eyeballto]

i received my microfiche but some were missing i dunno if its any help but i decided to mass call every abbey number not telling them what i was doing complaining some of my microfiche was missing... i received loads of statements of which about 2 years were stuff they claimed previous was only on microfische so basically its all rollocks what they say

[Cpt Black]

Yeah, its just a delaying tactic, and unfortunatly a good one as we have to end up suing them for breach of Data Protection Act, however I'm after an argument to work into the Subject Access Request or a reply to their letter saying we can't have the microfiched archives, but ultimately each of us may have to sue them for the breach of DPA anyway until they realise its fruitless!

[Graham777]

I have gone down a different route. I am not prepared, or qualified, to argue the toss with Barclaycard. There is obvious confusion here. In my opinion the Information Commissioner’s Office knows more about it than I do. I have given Barclaycard 7 days to contact them and sort it out! Takes me out as the ‘middle’ man and can only look good for me! Will keep you posted!

[Glenn UK]

FWIW

Having used microfiche in the past, but along time ago, it seems to me the fourth test as to how easy it is to access and locate has a number of aspects.

What does specific information mean? To my mind it means can i have details of my transactions and its logical that for the microfiche to be of any use, the filing system must allow the bank to search for the whole or part of a file on an individual and their accounts.

Its unlikley that it would all be located on one 'file' because they would have to update everyones file regulalry to make this viable. More likely its all filed by date as archives.

So they must be able to search it at the very least by name and date to make it of any use to them.

Further in order to find a given set of data on an indivudal they must be able to search by account number too, many people have more than one account with the same bank, clearly if you need to search a given year it would be useless to find all entries without be able to indetify the portion desired if you only want data for one account.

Finally, i think, they must also be able to break it down to indivudual months at the very least and probably further since to do anyhting else would mean that they have to search a whole years worth of sheets to look for the one bit of info they want.

Although this has nothing to do with legalities in my mind it does show that for the microfiche system to be a viable data resource for the bank, irrespective of our needs, it must be capable of being searched for quite explicit data about an indiviaul and their accounts.

I think this makes it data within the act.

sorry if thats long and rambling but it seems clear to me if they cant search it effectivley then its useless to them, bearing in mind the amount of data they hold and process i cant see them allowing this.

in summary for the system to work for all concerned it has to be able to be searched by

Personal details
Account number
Date (probably day)

I think this would be called specific information if theres somewhere in law that supports this it would be useful i guess.

glenn

[Cpt Black]

i totally agree, and thats thats basically (and probably more eloquontly) what I said, however

4) be structured in such a was that specific information relating to a particular individual is readily accessible. . . .

I suppose you could interpret readily accessible not as being able to locate and read quickly and easily which we have said it is, but how easy is it to turn that into paper form?

I have to admit I have never used one of these machines before although I have seen them in the library (are they the same ones basically?) and they must be fairly easily just to print out? And using the common sense approach, BC or Abbey or whoever would be shooting themselves in the foot by having a filing system which isn't usful in this sense - say the police were investing some money laundering that went back to mid 2003 or earlier, they would have to be pretty sharpish then!

[Glenn UK]

I cant be certain how they set their system up, but it seems to me that the whole point of microfiche was to hold data for relatively easy retrieval at some point in the future when computer technology wasnt in the same state it is now.

So as to how easy it is to retrieve said data i can tbe sure, but i suspect if its been set up properly then it will be a cinch.

Think of it like when you go into the car dealers and they use a similar system to find part numbers.

You tell them some initial dat which allows them to find the correct piece of film, in our case it will be the date, so they go to the box/room/shellf whatever for the year/month you want.

they have your account number so they go to the box/shelf for that series of accounts.

They find the box covering all the accounts for a given period with a specific series of numbers and find the sheet/film that covers your account.

they load the film scan through to the right point, presto your data is revealed.

Anything other than this would mean the system wouldnt be of any use.

For what its worth the motorcycle dealer i use can find any part number for my 12 year old motorcycle in a matter of a few seconds using a little box holding microfiche slides for all common motorcycles used in the uk and the model number.

on the face of it the scales may seem different however, there are a fair few parts involved in the bike, tens of thousands i guess, coupled with a number of variations over 20 ish years they have been made means this is a serious data retrieval operation if the system is not set up well.

Edit re turning it into paper form, the michrofiche machines i used have always had the facility to print directly from the film, so it shold be a problem since they would have had this as part of the set up when it was specified.

Just a thought

Glenn

sorry if this is all a waste of bandwith, i dont have any legal training although i do have to deal with legislation but nothing to do with contract law but do find this all very interesting and of course relevant

[deemacperth]

I'm at court with Lloyds over this.

They know my old bank account number, sort code, branch and when I opened and closed my accounts, but somehow they can't locate my microfiche????

Court action for non compliance and they're defending, should be interesting.

[Cpt Black]

I would definitly do some research into the Durant case for your court case

Re: Glenn - in that case, as far as I can see the microfiche system is indeed a relevant filing system!

[Glenn UK]

Cpt Balck

I have to piont out it was a long time ago i used michrofiche systems and it was in libraries searching for documents.

However, newspaper cuttings arent the same as alpha/numeric data stored in a specific order, like the motorcycle/car dealers, should make the retrieval and conversion to printed format a doddle.

JMHO

Glenn

[Cpt Black]

I agree, unfortunatly I cant use this against barclaycard as my account was started aug 05 and therefore I will have nothing beyond may 04, but believe me, I would try and use the Durant case but get more backup before believing me.

We have basically settled the microfiche argument we just need to say, in our reply to their 'microfiche letter' something that makes them send out our precious gold statements