b/card, non-compliance DPA, microfiche- experts view please

[lynzpower]

Hi all

 

I see quite a few people have had thier DPA money added to their balance when sending cheques. Has anyone got a letter template to avoid this happening?

 

Lynz

[Guest BlueRuby]

I hope I'm not missing the point here but does it matter if they apply the £10 to your balance? So long as you state in the DPA letter that you are enclosing £10 as the maximum fee under the DPA, as it states in the template, they can do what they like with that £10 so long as they send you the statements, or rather the completely useless printout, which is what you will get!

[lynzpower]

Well others have had it added to thier balance and the statements not recieved. I strongly worded that I would be reporting to the Information Commissioner if this happens.

 

DPA sent yesterday, recorded.

 

Lets wait and see what comes up shall we...!!

[lynzpower]

Hi there all - ive had a nose round again and cant work out what to do next, so apologies if others have had this same prob, please post me a link if you know of where this has been asked before

 

Well not a day goes by that barclaycard dont **** me off.

 

Heres todays installment

 

thanks for your letter dated 6/6/06

 

your reference to Smith vs Lloyds is puzzling in this regard as that case fully supports b/cards position in that case Smith made SAR to LTSB blah blah its not a relevant filing system, microfiche isnt a relevant filing system etc

 

nor do our systems support searching for charges blah blah

 

However if you want to you can pay £3 a statement. from CS.

 

1) if it isnt a relevent filing system whats the point in having it

2) if they havent got the info I need then how COULD I pay £3 a copy for old statements if they are on Mfiche ?

 

Could we please have a sticky with the answers to these, and other stalling tecniques used by B/card.

 

Off the top of my head they have 3 more days to comply with the DPA.

 

Where next?

[lynzpower]

please delete as this is covered in Moores thread

 

Im boiling over here

[lynzpower]

Just gave them a quick ring to find out what thier position is.

 

they advised that there is an appeal on the durant case details of which will be on thier website "soon" ( wheever that is) but in relation to whether microfiche is a relevant filing system or not.

 

I suggested to the IC officer "iman" was her name, that surely all bodies could stash data on microfiche so that its not relevant or accessible & the DPA worth scratch. She had no response apart from saying that they are looking into it and I should send them an email.

 

Thought id share

[southernscouser]

Recognise me?

 

Good luck!

[lynzpower]

Sorry to multiple post, this is the last one today I promise

 

Basically as I understand it

 

Bcard state everything on Microfiche

Bcard say we can pay for statements at £3 a go

IC states i could send them a poxy email to let them know they arent coughing my statemetns

Microfiche not a "relevant filing system" under the Durant case ( appeal results to be posted on the IC website

 

I could get aggressive and take them to court.

Judge could award damages. Anyone any idea what this could be? What sort of damages? HAs anyone done so? WHat was the outcome?

Could we ( thinking out loud here) go for a group action?

 

And my top one if B/card can send me copy statements then surely they have the data on system, thats printable ie not microfiche. So there are grounds to say, obstructive, and purposely withholding my data. What COULD be the outcome of this? Fines? Compo?

 

Man Im getting litagous.

[lynzpower]

lol cheers mate

 

I for one am abslutely livid

[Spiceskull]

And my top one if B/card can send me copy statements then surely they have the data on system, thats printable ie not microfiche. So there are grounds to say, obstructive, and purposely withholding my data.

Personally I would write/call them with exactly this point - either the data is accessible (and therefore filed in a relevant system) or it isn't, and therefore is unavailable to be sold.

 

They are digging their heels in, but as well as this, I would let them know you are going to be reporting them for the reasons you mention here.

 

This is still relatively uncharted territory, but somewhere down the line they will be brought to heel - good luck.

 

See the steps I took to get my bank charges back.

Spiceskull v HSBC.

Thank you Consumer Action Group.

Read my blog.

 

[lynzpower]

cheers spiceskull

 

Who shall I call, Barclaycard?

 

Maybe Ill download that recording software your advertising....

[Spiceskull]

Getting Skype would be good - if you speak to them, and record their flustering responses it would be great. Effectively their current position is paradoxical, and they need to fall one way or the other - to get a recording of this would be briliant.

 

See the steps I took to get my bank charges back.

Spiceskull v HSBC.

Thank you Consumer Action Group.

Read my blog.

 

[lynzpower]

Ok, will download it now

 

oooh getting a bit jittery, dont want to balls this one up

[lynzpower]

darn it I dont have Skype

 

So I shall have to write to them I guess

[lynzpower]

Just had a quick ring with my lovely new freind Rachel Shiels.

 

Asking why she wouldnt be able to give me the sadi statements as I could pay to have them

 

She states the reason why is that they are on microfiche and the £3 per statement is to print them off the microfiche and the charge is as its so time consuming.

 

I said if I paid the charges as of today, how long would it take for the statements to arrive with me - she replied 14-21 days ( a bit off eerrr err ing)

 

I siad well, I gave you 40 days to produce this data, but you have chosen not to, if you did so at the start of my 40 days then if it took 21 days you would have met within the DPA target.

 

She replied er well its all so time consuming.

 

I said, right well I'll leave it there then.

 

Off to court I think

[Spiceskull]

Great convo - shame it wasn't recorded...

 

See the steps I took to get my bank charges back.

Spiceskull v HSBC.

Thank you Consumer Action Group.

Read my blog.

 

[lynzpower]

If any other user has Skype and can have a similar conversation with Rachel Sheils please do. Her no is 01604 25 307

[lynzpower]

Bookworm

 

thanks for your PM.

 

I now understand that I shall have to either a) just estimate what they have charged me over the last 6 years ( difficult as I started my DD about a year ago so havent missed payments, but before then looked about 130 a year but sheer guesswork there)

 

or B) take them to court & prosecute under the DPA.

 

AM I right in thinking this?

 

Anyone got any cases found handy about actions taken under the DPA. With this whole "relevant filing system business, I suspect that they might defend, as seemingly they have a defence after speaking to the IC yesterday.

 

I am very worried about losing my court fee

 

Whats the potential outcome. Im happy to be a lone voice battling for this on behalf of us as a group, but has anyone ever heard of anyone getting anything out of it? Apart from the greater good of course. ie compo ( whatever I get of course CAG will get a slice )

 

I am happy to pursue this on behalf of others, however, I will require some support so is there anyone that can buddy with me? tbh I al resistant to going through this like a lost sheep lol

 

PLEASE HELP ME!!!

[lynzpower]

OK,

 

Ive posted this multple times, so sorry about that, but I thought tihs would be the best place for it

 

Ive had all the blurb about £3 a statement and so forth and yesterday I rang Rachel sheils at the b/card legal team who wrote a letter to me. Conversation as follows

 

me " Im reading your letter here and I can see that you are stating that microfiche isnt a relevant filing system"

rachel sheils " yep thats right"

Me "OK then, but I can order statements at £3 a copy"

her "yep"

Me "if I order the statements with customer services over the phone today, how long will it take for me to recieve these statements"

Her "erm 14 days, maybe 21 days"

Me, " well the DPA request gave you 40 days why did you not just rake through the microfiche then as you would have had adequate time to comply with the DPA request of 40 days if it only takes max 21 days"

her " erm erm, well its all so time consuming, thats why it costs three quid a statement"

me " so its the labour costs that are £3 effectively"

her "erm yeah, but if you send me a cheque Ill process it etc"

me " Ill leave it for now thanks youve been really helpful, bye"

 

So its all tripe as far as Im concerned.

 

WHAT DO I DO NEXT. Am I right in thinking that I send one of the letters from here

http://www.consumeractiongroup.co.uk/forum/showthread.php?t=6986 and then await response?

 

I wrote the DPA on the 8/5/06 so they have had adequate time to comply so far, all this heel dragging isnt doing them or me any good. But they have up till the17th of june I reckon if my maths is right for 40 days.

 

Can someone clarify for me what the next steps are. Do I report to the IC yet, as the 40 days isnt up, or do i present tiher info as the final repsonse?

[lynzpower]

Ive just spoken AGAIn to LINDA at the Information Commisioners office.

 

She states that Microfiche isnt a relevant filing system.

 

I asked her about how it can be non-relevant if they can print off the statements at £3 per sheet. She states that its not a relelvant filing system as they will have to use microfiche.

 

However, I was briefly drafting a letter based on the Smith v Lloyds case, and it looks a bit like this ( unfinished)

 

 

Dear Ms Sheils

Data Protection Act information request dated 7.5.06.

The disclosure of personal data is incomplete.

 

You have stated that the documents I require are not in a “relevant filing system” as per the Durant Case, as they are held on Microfiche.

 

It became clear to me during our telephone conversation dated 8/6/06 is that the documents I require are held on Microfiche system, and that they would be made available to me at the cost of £3 per sheet. Common sense and reasoning suggest then that as they are available to me at a cost of £3 per sheet, then they are held in a relevant filing system.

 

Additionally, you stated to me that the cost of £3 per sheet was to cover the cost of personnel required to retrieve this information from your Microfiche system. As someone who has daily experience of using the DPA, I understand it is not legal for you to charge me for the cost of retriving data for me.

 

In the Smith Vs Lloyds TSB case, the following should be noted

1. The expression "data" is defined in s 1(1) of the 1998 Act as follows:

"(1) In this Act, unless the context otherwise requires-

‘data’ means information which-

(a) is being processed by means of equipment operating automatically in response to instructions given for that purpose,

(b) is recorded with the intention that it should be processed by means of such equipment,

© is recorded as part of a relevant filing system or with the intention that it should form part of a relevant filing system,

(d) does not fall within paragraph (a), (b) or © but forms part of an accessible record as defined by section 68, or

(e) is recorded information held by a public authority and does not fall within any of paragraphs (a) to (d)."

 

It goes on to state :

1. It will be seen that (a) and (b) refer to processing by automatic equipment. Processing is itself defined as follows:

"‘processing’, in relation to information or data, means obtaining, recording or holding the information or data or carrying out any operation or set of operations on the information or data, including-

(a) organisation, adaptation or alteration of the information or data,

(b) retrieval, consultation or use of the information or data,

© disclosure of the information or data by transmission, dissemination or otherwise making available, or

(d) alignment, combination, blocking, erasure or destruction of the information or data;"

 

As you have stated to me, my statements are held on your microfiche system. Therefore as outlined above, the data is processed by virtue of it being held, organised, and is able to be retrieved. As a result, you are incorrect when you state that your microfiche system is not a relevant filing system, as as you yourself state that my statements CAN be retrieved. Indeed, during our telephone conversation, you stated that I would be able to receive my statements at a cost of £3 per statement, and those statements should I wish to pay for them would be with me within 14-21 days.

 

The Case notes from Smith Vs Lloyds TSB go on to state:

 

1. The latter is defined in s 1(1) of the 1998 Act as follows:

"‘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

 

AND:-

Thus information can be treated as data under the 1998 Act if it is kept in a qualifying filing system. The scope of this was considered by the Court of Appeal in Durant v Financial Services Authority [2003] EWCA Civ 1746. For present purposes it is sufficient to summarise Durant as holding that information kept in a non-computerised manual system is only to be treated as data if the filing system is sufficiently structured to allow easy access to information specific to the data subject. The data controller is not to be put to a great deal of effort in extracting the relevant information.

 

Clearly the information IS readily accessible, and sufficiently structured, as you have stated to me that I would be able to receive these statements within 14-21 days, ample amount of time within the DPA target of within 40 days.

 

I reiterate the following to you.

 

1) You have failed to provide a complete list of transactions and charges, from November 1999 to May 2004

2) You have provided no notes, or documents relating to any legal action between you and myself.

3) You have provided no notes, or documents relating to instances of manual intervention.

 

This is not an exhaustive list by any means, it is just an example of some of the information I am missing.

 

Accordingly, I have to tell you that you have not yet complied with your obligations under the Data Protection Act 1998.

 

You have a further 6 days to comply.

 

Yours faithfully,

 

Lynzpower!

 

 

Whaddaya reckon? Is it OK?

 

Im struggling here as the IC do seem to be a bit toothless, has anyone spoken to anyone decent/ proactive there?

[lickthewallfatboy]

the more I think about this,the more i am considering just slapping in an estimate,claiming in court and let them prove otherwise.

 

stuff them-if they want to be awkward and play silly buggers....

[lickthewallfatboy]

if it's ok,can I use a slightly amended version of this letter,as it reads over very well to me.

 

I think that they are going to have to see court papers in any case in order to get them to pay up.

[lynzpower]

Lets wait and see what Mods reckon to it.

 

Personally, Id like to run a couple of points over with the IC on monday, but will report back by Monday lunchtime.

 

Im feeling like I migh just try to take this to court and overturn the "what is relevent filing system" saga once and for all. Or at least try

[Robertxc]

Can I make a wee suggestion? The presumption usually is that your data is only held in statements, which is actually slightly misleading. I also had the somewhat odd conversation with the IC to the effect that statements are not covered by the DP. The important thing here is not that you need 'statements', but that you need 'transactions'. "What's the difference, oh wise sage?" I hear you cry. The difference is that they will have to have a note of all of your transactions for their own internal accounting purposes! This information must be stored on a computer somewhere, otherwise how do they keep track of all the dosh? They can argue all they like that microfiche isn't covered by the DPA, but so what? The information which went to make up the microfiche most certainly is.

 

As an aside to this, check threads for Clydesdale Bank and the DPA. Clydesdale were (laughably) maintaining that everything before July 2005 was exempt from the DPA because it is stored on microfiche. After numerous people complained to the IC, they've magically changed their tune. Funny that, don't you think...?

[lickthewallfatboy]

that's a very interesting point you raise,and is worth serious investigation.Barclaycard really need a good sickener in this DPA business,and I would love to see it happen,believe me.