Hope this might be of help...

[dchunter1]

For the attention of everyone in the process of claiming charges back from Barclaycard. We received a letter from them today informing us that they are only able to provide statments from May 2004 as beyond that time the information is stored on microfiche which they claim sits outside of the Data Protection Act (i.e. not on a "structured relevant filing system"! We have contacted the Department for Constitutional Affairs (they have a good web site), and the Information Commisioners Office (also a good web site), both were very helpful on the phone. They have urged us to write in a letter of complaint to Information Commissioners Office with a copy of Barclaycard letter. The Information Commissioners Office inform us that they have many many complaints regarding the same issue with Barclaycard, and that basically, Barclaycard are indeed wrong. Microfiche is a structured relevant filing system. Barclaycard more or less say that in the letter when they ask for £3 per statement beyond May 2004, for their retrieval costs!! I would urge everyone who experiences this sort of attitude from Barclaycard to send in a letter of complaint to the Information Commissioners Office (address details are on their website - just google them). The more of us that complain via the Information Commissioners Office, the more they can do something about the pompous attitude of B. Card, and their thinking that they are above the law.

 

Good Luck!

[Rooster-UK]

Hi DCHunter.

 

A useful piece of information.

Good find.

 

This is a situation that has been a problem to quite a few people.

[roydosan]

Sorry but I think they may be mistaken:

 

"The narrow definition of a relevant manually filing system was applied in Johnson v Medical Defence Union [2004] EWHC 347 (Ch). Laddie J. said (ibid [34]) that there 'must be ready access...The data controller's employees must be able to identify relevant data at the outset with reasonable certainty and speed and without having to make a manual search'. The end result is that save in cases where there are very sophisticated indices,manual records of paper documents and microfiche records of paper documents are outside the scope of the Data Protection Act. He rejected the argument that information that is recorded as part of a relevant filing system retains its status as 'personal data' once it is removed from the relevant filing system by the data controller."

 

data protection

[dchunter1]

roydosan, there are quite a few cases published on the net about the issue of microfiche and the DP Act. However, one such case cites that "once data, always data". If the data which ends up on microfiche was once held on a computer then thisn is the loophole which will allow access. The fact the Barclaycard can access thier microfiche at a cost of £3 per statement proves that they can retrieve the data is some sort of order. Their letter states quite clearly that tdata held on the microfiche is in date order, ergo a structured format. If putting data onto microfiche was a way out for banks and CC comps to prevent giving access, I am sure they would all be doing it. We also have an email from B/Card informing us that they can comply with our request to provide all the information we have asked for, for a fee of £10. I think that this will be sufficient evidence if we need to go to court with this none. Does anyone else have any views on this, or similar experiences?

[Cpt Black]

Hi, I posted the SAR letter and received the statements back with the standard letter about the microfiche issue, however I only started the account in Aug 05 so my records don't go back beyond May 04!

 

Is there anything I can do to argue against their point of stopping me going back beyond May 04 even though there's nothing there?

 

Would there be any other point to it other than proving the point? Oh, and maybe seeing what the inside of a courtroom looks like

[Cpt Black]

roydosan, there are quite a few cases published on the net about the issue of microfiche and the DP Act. However, one such case cites that "once data, always data". If the data which ends up on microfiche was once held on a computer then thisn is the loophole which will allow access. The fact the Barclaycard can access thier microfiche at a cost of £3 per statement proves that they can retrieve the data is some sort of order. Their letter states quite clearly that tdata held on the microfiche is in date order, ergo a structured format. If putting data onto microfiche was a way out for banks and CC comps to prevent giving access, I am sure they would all be doing it. We also have an email from B/Card informing us that they can comply with our request to provide all the information we have asked for, for a fee of £10. I think that this will be sufficient evidence if we need to go to court with this none. Does anyone else have any views on this, or similar experiences?

 

I think the case you are refering to is Paragraph 14 of Snith v Lloyds: http://www.hmcourts-service.gov.uk/judgmentsfiles/j3127/smith-v-lloyds.htm However in the subsequent paragraphs, I read it as, the judge dismissed this argument.

 

Because the data was once processed by a computer, its relates to currently being partly processed (according the DPA 1998) which the judge credited to a "slight of hand" by Smith

 

Any thoughts?

[Cpt Black]

Ok, after more trawling of the internet, try this page:

Disclaw Publishing - Employment Law, unfair dismissal, redundancy pay

 

The Court of Appeal considered the proper meaning of "relevant filing system" in an important case in 2003. The Court of Appeal held that manual records are covered by the Data Protection Act 1998 "only if they are of sufficient sophistication to provide the same or similar ready accessibility as a computerised filing system" ( Durant v Financial Services Authority CA 2003 on 8th December 2003

 

Here is the durant v FCO

http://www.ico.gov.uk/documentUploads/Durant%20v%20FSA%20Case%20Summary%2022.pdf

 

I think the court basically found that its relevant data not just documents (ie something with your name on) and as the microfiche is highly organised it is relevant.

 

I'm still umming and arring about the relevance of the microfiche filling system, will investigate some more and report!!

[Cpt Black]

From this page

http://www.ico.gov.uk/documentUploads/Durant%20v%20FSA%20Case%20Summary%2022.pdf

Durant V FSA

(On the top of page 5 of the pdf)

which has, as part of its own structure or referencing mechanism, a

sufficiently sophisticated and detailed means of readily indicating whether and

where in an individual file or files specific criteria or information about the

applicant can be readily located.”

 

This seems to indicate that the microfiche filing system is indeed relevant and accessible by the data controller

[blacksheep1979]

Ok, so the point is they aren't giving out the information pre may 2004.

 

Now if you issue a small claims court summons for a given value, if they want to defend against this then they will have to produce this information anyway in court.

 

Or if you purchase these records you will be able to claim for an accurate amount AND the cost of obtaining these records

[Cpt Black]

Ok, so the point is they aren't giving out the information pre may 2004.

 

Now if you issue a small claims court summons for a given value, if they want to defend against this then they will have to produce this information anyway in court.

 

Or if you purchase these records you will be able to claim for an accurate amount AND the cost of obtaining these records

Thats the long and the short of it, but if your reply to the microfiche letter, you can clearly state precedence from another case they may drop the argument against you saving the hassle

[dchunter1]

Cheers for all that research! It will certainly add a punch or two to the letter in response. I feel tht if the data is retievable enough to provide statements providing the customer pays £3 per statement, then surely a court would rule that the company should be providing the statements in with the already paid £10 fee they have asked for and received. It is just a way of them making even more money out of the poor unsuspecting customers. And, also I think it is their way of sorting out who is serious about the claim for refunds and who is not prepeared to take it all the way if necessary. Apparently they have got thousands of claims over recent weeks! Wonder how these people know about it!!

[NitrousOxide]

Sorry but I think they may be mistaken:

 

"The narrow definition of a relevant manually filing system was applied in Johnson v Medical Defence Union [2004] EWHC 347 (Ch). Laddie J. said (ibid [34]) that there 'must be ready access...The data controller's employees must be able to identify relevant data at the outset with reasonable certainty and speed and without having to make a manual search'. The end result is that save in cases where there are very sophisticated indices,manual records of paper documents and microfiche records of paper documents are outside the scope of the Data Protection Act. He rejected the argument that information that is recorded as part of a relevant filing system retains its status as 'personal data' once it is removed from the relevant filing system by the data controller."

 

data protection

 

The argument of microfiche not being liable under the DPA is only relevent to this case.

[noobrider]

check out the Abbey section as microfiche has been a long running argument on here...Seminole has a case for non compliance due to the microfiche argument too

[lookinforinfo]

You could write to them pointing out that the DPA requires that they supply all

relevant personal information held by them for 6 years. Should they not supply

that information within 40 days following payment of the statutory £10, then they

are in breach of the Act.

 

To ask for further payments to supply said information is also a breach of the Act.

As they have failed to furnish the required information within the prescribed time,

you will assess your unlawful charges as £5000. Should they fail to pay said amount within 28 days, legal action will be instigated. And the Court can decide in view of

their intransigence and disregard for the Law, what the settlement should be and

what penalties to apply for their flagrant abuse of duty to abide by the Law.

Should they be able to furnish the Court with the information you requested, this

will be further proof of their inability to adhere to the Law and doubtless will be

noted by the Judge. Advise them that you have a wealth of evidence showing that

they are deliberately flouting the Law including correspondence with the ICO and

The Department of Constitutional Affairs for the Judges' perusal.

 

Basically if you deliberately over price your claim, as they never go to Court especially when it will include breaches of the DPA as well, you will find that

rather than main tain their defence, they will produce their records-grudgingly of

course. Or you might get paid out £5000.

[Cpt Black]

You could of course offer to let the court see the statements and assess the correct value without you seeing, I think this was disscussed in the Smith case, or maybe the Johnson.

 

In any case the 2 main cases to draw on in submitting your claim to court are Johnson and Durant, with the possible inclusion of Smith but I'm not too keen on that (although on further reading and interpretation the may be some useful bits to take as precidence)

[Cpt Black]

Hi all, I've started this thread about stopping the whole microfiche issue, you may want to read and discuss

http://www.consumeractiongroup.co.uk/forum/general/19304-microfiche-issue-lets-get.html#post150239

I fear I may get a bit tied up in the legal part so help me clarify what I'm trying to say.

 

Also, some of my points may be irrelevant - so let us know whether we may be able to discard them

 

Cheers

Cpt Black

[tamadus]

I also phoned the information commissioners office this week and was told that their view is that Barclays are definitely in breech of the Data Protection Act and that microfiche is a relevant filing system, especially as they can supply the data at an additional charge of £3

 

He strongly recommended filing a complaint, which I have done. You can find the appropriate document on their website www.ico.gov.uk fill it in and then print it and mail it to them along with copies of letters from Barclays/Barclaycard.

 

I am now going to send an LBA on the non-conforming to the DPA and instigate proceedingsfor that.

 

I will then make a reasonable estimate based on the data I have got and include interest (compounded of course). Failure to come to a settlement will of course result in court proceedings being started for the monetary claim. The court documents will clearly show that it is an estimated claim and the reasons why and also ask for full disclosure.

 

By then they should realise just how serious I am and either start negotiating or meet me in court. I am sure that the judge willsee how reasonable I have been whilst they have done nothing but flout the law that he represents and hinder my legitimate and lawful claim every step of the way.

[Cpt Black]

That sounds good, and the information commissioners office are correct, its just getting that in the letter.

 

However I would consider waiting until the DPA non-compliance case is complete until continuing with the charges - anyone else have a view on waiting or not??

[tamadus]

MY idea is that once I have confirmation of my complaint to the Information Commissioners Office I send out non complince letter first to Barclaycard, that will be follwed about a week later by an LBA on the claim giving full details of why its extimated, I'll make sure it includes a section refering to pending action for non compliance.

 

I suspect that once they get court papers for both claims they will either make an offer or back down and supply the data. I can always ammend the court summons for an additional charge if needed.

 

I will also tell them in the LBA that I intend asking for FULL disclosure (which includes how their charges are calculated) and if needed I am prepared to take it onto the fast track which is something they are very unlikely to want to happen.

 

Risky I know as it could leave me with a huge expense but the track record so far for all the banks indicates they will want to avoid fast track. I think that cross linking the 2 cases will apply extra pressure.

 

I may of course try something totally different as I am closely looking at Data Protection Act section 7 and the human rights act and I think I may have found something which I cant detail at the moment.