Barclaycard Non Compliance with SAR - Court Action to enforce compliance

[lukeman]

Hi Folks,

 

I wonder if someone might be able to assist on my POC.

 

Basically in Jan 2010 I made a SAR with Barclaycard and they only sent me statements and back in Feb 2010 I sent them a NON Compliance notice and they simply ignored it.

At the time I had lost my job and was going through tough time so I did not follow it up.

 

Fast forward July 2013 I sent them a new SAR request, again they sent statements only. Then I sent them non compliance notice and letter before action and still they had not responded.

 

I would like to get a court order to enforce compliance as per below kindly please review and advise ways to improve it.

 

I gather they are hiding something as the account was sold to Lowell and they don't have CCA and only sent me an application form. Further they issued 2 default notices, one in Dec 2006 and one in March 2009 when I stoped paying the token amount as I could not afford it.

 

I assume the last payment date (Jan 2009) would take precedence rather than the default notice being issued back in Dec 2006 ?

[lukeman]

POC - Please review the highlighted section

 

1. The Defendant is a Data Controller within the meaning ofthe Data Protection Act and is responsible for the processing of data of whichthe Claimant is a Subject.

 

2. The Claimant had an account number (49/ 53) ("the Account")with the Defendant which was opened on or around 21 Jan 1997.

 

3. On 20 July 2013 the Claimant sent a Subject Access Request, pursuant to Section 7 of the Data Protection Act 1998 to theDefendant.

 

4. The Defendant has failed to comply for the second time.

 

5. By virtue of the Defendant's failure to comply with the Subject Access Request the Claimant has suffered damage (and distress).

 

6. The damage (and distress) caused is:

 

Extra costs incurred in addition to court costs, due to the Defendants failure to comply - this includes the cost of additional correspondence and time spent preparing documents and seeking legal advice, I estimate this cost to be £495

 

On the Jan 2010 theclaimant made the first request for DSAR which the defendant failed to comply thus the reason the claimant made a second request on the 20th July 2013 and yet again the defendant failed to comply fully.

 

The defendant had defaulted on their obligations since Jan 2010 until now.

 

The claimant had incurred cost since the first request in Jan 2010 to date as the claimant refused to comply with their obligations under the Data Protection Act 1998.

 

7. The Claimant seeks an order that the Defendant do comply with the Claimant's Subject AccessRequest

 

8. Under the terms of Section 15(2) of the Data ProtectionAct 1998, where the Defendant contests that information requested under the Claimant's Subject Access Request is not included within the scope of Section 7of the Data Protection Act 1998, the Claimant requests that the Court inspects that information, and where it finds that the Defendant's opinion is unfounded,that it orders such information be included within the information supplied to the Claimant under the Subject Access Request.

 

9. Damages and costs within the discretion of the Court.

Edited October 8, 2013 by citizenB
formatted

[citizenB]

The Agreement, is that what you are seeking to have the provide to you, Luke ?

 

I am a little concerned in that, the Information Commissioner has advised that they do not have to provide a copy of the agreement within a DSAR as it is covered under the Consumer credit Act Request (s78).

 

In respect of your Default notice. If one was issued in 2006 and you subsequently remedied that by either paying the arrears requested or even a token sum then they will be able to issue a further Default Notice.

 

I will have someone pop in to provide further assistance

[lukeman]

Thanks CitizenB for the prompt response.

 

I made the SAR to get full disclosure from Barclaycard as I am entitled to. But all they want to give me is statements.

 

I gather something is up or might be trying to hide something.

 

Whats more I just had a letter from Lowell saying Barclaycard had complied with my SAR....... but I never sent them the original request and nor ever mentioned to them I made SAR to Barclaycard.... Why is Lowell responding on behalf of Barclaycard.

 

I think I would ignore Lowell as my request was sent to OC.

[BRIGADIER2JCS]

Hi Folks,

 

I wonder if someone might be able to assist on my POC.

 

Basically in Jan 2010 I made a SAR with Barclaycard and they only sent me statements and back in Feb 2010 I sent them a NON Compliance notice and they simply ignored it.

At the time I had lost my job and was going through tough time so I did not follow it up.

 

Fast forward July 2013 I sent them a new SAR request, again they sent statements only. Then I sent them non compliance notice and letter before action and still they had not responded.

 

I would like to get a court order to enforce compliance as per below kindly please review and advise ways to improve it.

 

I gather they are hiding something as the account was sold to Lowell and they don't have CCA and only sent me an application form. Further they issued 2 default notices, one in Dec 2006 and one in March 2009 when I stoped paying the token amount as I could not afford it.

 

I assume the last payment date (Jan 2009) would take precedence rather than the default notice being issued back in Dec 2006 ?

 

Just hang on here before issuing any claim.

 

First a formal complaint to the Data Controller at Barclays, to give them a chance to rectify the non compliance, you can also make a concurrent complaint to the ICO.

 

The 'claimant' has not made any reasonable attempt to resolve prior to issuing the claim.

[lukeman]

Thanks Brigadier,

 

Please see the letter I sent them before, was it sufficient as per pre action protocol;

 

DataController

Barclaycard

LETTER BEFORE ACTION

Section 7 – DataProtection Act 1998

DearSir/Madam,

I am inreceipt of the documents that you have supplied in response to my DataProtection Act information request dated 20 July 2013. The disclosure of personal data is incompletein that at least the following documents are missing.

You have failed to provide:

1) A complete list of transactions andcharges.

2) Full copies and transcripts of ALL correspondence in postal, email orany other format between Barclaycard and myself.

3) Full copies and transcripts of ALL correspondence in postal, email orany other format which you have entered into with Lowell Portfolio I Ltd whichcontains my personal or financial information, or which pertains to me.

4) A list of third party agencies to whomyou have disclosed my personal data and a summary of the nature of theinformation you have disclosed.

5) The original signed, executed Credit Agreement/sand any terms and conditions that applied to the account/s at the time theaccount/s was/were opened.

6) Truecopies of Notice of Assignment, Termination Notice and Default Notices or enforcementnotice that you had allegedly sent me, with a copy of any proof of postage thatyou hold.

7) Full hard copy print outs of ALL my personal or financialinformation, held in a digital, magnetic or any other format which is held inany archives, backups or other storage devices / locations includingmicrofiche.

8) Copies of ALL documents which include ALLof my personal information including copies of contacts or invoices, emails orcomputer records containing my personal information, or any records whichpertain to this information including Full telephone transcripts and fullscreen shoots.

9) Documents relating to any PPI added tothe account/s, including the insurance contract and terms and conditions,date/s they were/ it was added and deleted. (if applicable).

[citizenB]

You must make a section 77/78/79 request to legally request a copy of any agreement...not a DSAR

 

I thought I was correct. It is very unlikely you will be able to force them to provide a copy of the agreement via a DSAR.

[BRIGADIER2JCS]

Agreed there is no obligation to do so.

[lukeman]

Thanks folks for your valuable contributions.

 

Just to clarify;

 

I know for sure there is no CCA as I applied for the Barclaycard at University open day and just filled up a form and got the card. Never signed a CCA. So I just addedthe CCA request on my letter to see their response. But most importantly I want all the information pertaining to subject data (yours truly).

 

I did not do the SAR to simply request CCA but for full data disclosure.

 

Hope this clarifies the matter.

[steampowered]

Some of the items in your list do not meet the test for 'personal data' under the DPA. The courts have limited this concept to information of a biographical nature relating to an identifiable individual. You can't get generic documents through a DSAR.

 

I do not think you can enforce a right to items 5 or 9 under a DSAR. I think items 3, 4 and 6 are too wide. Copy of a CCA Agreement should be requested through a CCA request. Things such as proof of postage and details on PPI should be requested through asking for pre-action disclosure.

 

I imagine there is a CCA ... not likely you can accurately remember what documents you signed 16 years ago.

 

Your POC would need some work before it is issued. You have to be careful. If you issue it as it currently stands, it would probably not get allocated to small claims and you would end up with a bill for thousands of pounds in legal costs if you lose. For a cautionary tale refer to http://www.consumeractiongroup.co.uk/forum/showthread.php?386041-Wandered-into-court-costs-minefield.

 

The courts have generally been quite hostile to use of DSARS where the real purpose is to obtain documents for use in litigation ... best to complain and see what their response is, and revert back for help with the POC before issuing.

[lukeman]

Some of the items in your list do not meet the test for 'personal data' under the DPA. The courts have limited this concept to information of a biographical nature relating to an identifiable individual. You can't get generic documents through a DSAR.

 

I do not think you can enforce a right to items 5 or 9 under a DSAR. I think items 3, 4 and 6 are too wide. Copy of a CCA Agreement should be requested through a CCA request. Things such as proof of postage and details on PPI should be requested through asking for pre-action disclosure.

 

I imagine there is a CCA ... not likely you can accurately remember what documents you signed 16 years ago.

 

Your POC would need some work before it is issued. You have to be careful. If you issue it as it currently stands, it would probably not get allocated to small claims and you would end up with a bill for thousands of pounds in legal costs if you lose. For a cautionary tale refer to http://www.consumeractiongroup.co.uk/forum/showthread.php?386041-Wandered-into-court-costs-minefield.

 

The courts have generally been quite hostile to use of DSARS where the real purpose is to obtain documents for use in litigation ... best to complain and see what their response is, and revert back for help with the POC before issuing.

 

Cheers Steampowered, much appreciated for your advise.

 

Let's see if they respond to my letter sent last week and will revert back as soon as.

 

As per POC, when the time is right I would need your assistant as well as the good folks here, Brigadier, Citizen among others.

 

Cheers

 

Taken all comments on board and look forward in working with you and the good folks here t

[lukeman]

Just to clarify folks,

 

All I want from Barclaycard is my data..... And nothing more.

 

they could have atleast provided me corespondances, telephone logs including SMS, and any other identifiable data as I am entitled to.

 

I am not sure how they are going to explain refusing my request for the second time.

 

follks,

 

shall I try the ICO first and do you know how long they would take to investigate and respond to me ?

 

Or I should build a strong case by pursuing internal complaints for another 2-3 months...... To data controller and CEO.....

[lukeman]

 

I imagine there is a CCA ... not likely you can accurately remember what documents you signed 16 years ago..

 

I know for sure I never signed CCA just application form and card came through few days later.

[AndyOrch]

Some applications can qualify as an agreement.

 

Regards

 

Andy