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

[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

[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

[lynzpower]

cheers spiceskull

 

Who shall I call, Barclaycard?

 

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

[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

[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?

[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

[lynzpower]

thanks so much for this.

 

I agree with you 100%

 

However, if I am going to take this one all the way I want to be 100% as far as I can

 

1) the information in microfiche is a relevent system due to being HELD - that much seems crystal to me

 

2) the IC say that they have requested to visit "some banks" to ask them to explain thier processes of storing data in relation to this issue. I asked how long this would take, reposnse almost as effective as "how long is a piece of string".

The IC dont seem to be placing a target ( which is rather unusual for government, dont ya reckon?) on when they want this resolved. but they are asking the banks to show transparancy. I almost choked.

 

I said to Linda at the IC today. If microfiche isnt a relevent system and a box of random papers isnt a RS either, what stops any organisation printing off whatever data they like, chucking it in a box and evading the act? "nothing really, but its not likely to happen" hardly regualtion is it ?

 

Barclaycard maintain they dont have any system to tell me what penalties theyve imposed prior to May 04, unless someone else somewhere has - dont want to rely on guesswork, it undermines everyones case I think if I act like a muppet with " i dont know what im taking you to court for"

 

So is the angle then to find out that they do have a list of charges and for them to cough up that they do. I just cant see them doing this, the floodgates will open, and they know it. And then complain to the IR?

 

Actually has anyone got these statements off Bcard microfische without paying for them. Id appreciate telling if they have, no point in me raking over when someones already achieved the outcome.

 

So many questions eh? Well keeps life lively if nothing else....

[lynzpower]

I feel more litagous by the hour, this is really starting to hack me right off Alan

 

I want my cash, and not at the timescales of the IC.

 

I could happily avoid court for this, but it seems unless I wait for the IC to come to a miraculous decision, and pronto, I could be waiting for all eternity.

 

I do appreciate the IC snowed under, a point which I made to them on the phone, but again if they dont have targets, then things will drag on for all eternity, clearly a definitive decision is better now than whenever in the future for all concerned.

 

SO what do I do? Do I take them to court for non-compliance once my 40 days are up? Can anyone give me an idea what happens at these hearings, what Is expected of me and so forth? Or another link would be cool

 

Much appreciated comrades x

[lynzpower]

Thanks seminole

Still trying to get my head round this TBH.

 

Barclaycard have sent me the ubiquitous print off that means sod all to me. If Ive anyway of deciphering it, I will, however, I dont think this is likely unless anyone can help me out?

 

I would love to get this one in court myself, but only if IM on the right lines.

 

A) can they issue the defence that this pointless print out IS the list of transactions I need ( although again further discussion as to whether it is classed as data as its clearly indecipherable)

 

b) They could enter the defence re: the relevant filing system ( agree with others avout this being a bit goose-chasey) HOWEVER, under the stuff I wrote before, Its clear to me, in any case that this IS thus "relevant filing system", and in fact any judge worth his salt may well agree (im with whizzkid on this one, I did jury service last year and the judges in all cases were spot on)

c) I havent written to the IC yet, shall I do that or not bother? I guess I should, although I have spoke to them twice.

 

If A&B shall I take this to court under the DPA, or are there others doing it. Has anyone got to court yet to make this case law At the end of the day this is surely whats needed some case law to say, actually, this is a RFS, so stop hiding behind this lame argument and face fact you are refusing to comply with the DPA.

 

Sorry to over ask the same questions, but clarity to each of these points would be good, if only to stop me going into such a bad mood!!

 

Cheers again

Lynz

x

[lynzpower]

nightmare for banks

What are you going to do next out of interest?

 

Lynz

[lynzpower]

thanks for this Robert

 

So, my NEXT piece of action today is

 

Phone rachel sheils and ask her to explain the print out to me.

 

I wonder if all affected by this from b/card just phoned up and asked for an explaination, would they be more likely to

 

a) send out data thats intelligible

b) pull the phone lines

 

Im gonna phone the IC and see if they can qualify this "held" issue that I have mentioned earlier.

 

Could we go for a group action ( lickthewallfatboy and others- you interested?)

 

Im fairly sure you can have group actions through small claims route as m,e & my previous housemates were advised to do so re an old tenancy agreement

 

Your thoughts greatly appreicated and thanks to mods for merging

[lynzpower]

Id like to know too

 

Lickthewallfatboy- Ive Pmed you with my email address, maybe we could chat it over on MSN?

[lynzpower]

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