FSA do not intend an injunction against destruction of data post July 2001

[Amethyst]

The FSA have stated that the clock on limitations stopped on 27 July 2007, and therefore consumers with complaints will be able, on the outcome of the test case, be able to reclaim back to 27 July 2001 without arguing anything under s.32 of the Limitations Act.

There is a concern that the Financial Institutions may destroy data past the standard 6 years thus rendering claims prior to (as of now) April 2003 impossible. The Information Commissioners Office does only require FI's to hold data for 6 years.

We (Tools actually ) asked the FSA a couple of questions regarding enforcement of this statement.

(1) Have the FSA had any communications with the Financial Institutions or with the Information Commissioners Officer regarding the destruction of data between 27 July 2001 and for example, April 2003? Can you supply copies of any communication regarding this matter.

The publicly available information is that we communicated our record keeping requirements to firms within the conditions of the waiver direction and variation of direction. These are available via the FSA website (www.fsa.gov.uk).
2007 waiver (see condition 12[6])http://www.fsa.gov.uk/pages/Doing/Regulated/Notify/Waiver/pdf/direction_disp.pdf
2008/9 waiver (see condition 13[5]) http://www.fsa.gov.uk/pages/Doing/Regulated/Notify/Waiver/pdf/disp_monthly.pdf


On 19 March 2009, the FSA issued all firms that have a waiver a letter which referred to a number of topics, one of which was the preservation of records.

The relevant extract of that letter is reproduced to you below:

Waiver condition 13 (5)
This condition relates to the preservation of records that are (or could be) relevant for the handling of existing or future relevant charges complaints.


As this requirement has been in place since the first waiver in July 2007, we expect that firms will have taken pro-active steps to ensure that any systematic or routine procedures in place for destroying or archiving old records have been reviewed, to ensure that such processes could not cause the firm to be in breach of waiver condition 13 (5).

The FSA has not had any communications with the Information Commissioners Office regarding the destruction of data relating to unauthorised overdraft charges.

(2) Does the FSA intend to implement an injunction against the destruction of data held after 27 July 2001?”

In relation to point (2), the FSA does not intend to implement an injunction against the destruction of data held after 27 July 2001.

[EXC]

Re: FSA do not intend an injunction against destruction of data post July 2001

That's valuable well done. What to do?

[righty]

Re: FSA do not intend an injunction against destruction of data post July 2001

In the event lenders do destroy data claimants will have every right to guesstimate their claims based on the data they do have

[Amethyst]

Re: FSA do not intend an injunction against destruction of data post July 2001

Have asked for a full copy of the 19 March letter. Also Nattie is working on something relating to this with Natwest which might turn up interesting.

[natweststaffmember]

Re: FSA do not intend an injunction against destruction of data post July 2001

I think you need the DPA and the "disproportionate risk".
I sent NatWest a SAR request in March for my data to the address on the ICO website and using their suggested words. Firstly they responded with "Do you want statements?" before finally responding with my information. They provided copies of data and copy statements for 6 years. However, I didn't receive notes from the NatWest Archive which I knew existed.
When I received them there was a letter attached stating "Our standard procedure for providing personal data allows for six years worth of data to be provided".
I did ask the ICO and they stated that I needed to find out the retention period of the bank so I emailed the bank to find out.

"Having approached our SAR team, I am advised the following;

if I make a SAR request would I expect to receive ALL data on my account or would it be restricted to 6 years worth of data? It would be restricted to six years

To follow up on termination of accounts, and the issue of SAR would that be expected to be produced on a Full Subject Access Request? Again six years back from the day you request the information"


I have spoken to the ICO and they have mentioned "disproportionate effort". My query was about restricted data so I kinda don't buy the fact that printing statements even for say 10 years is a disproportionate effortt. Over to you guys.

[Amethyst]

Re: FSA do not intend an injunction against destruction of data post July 2001

Just a wee note - the DPA does not cover statements - it does cover lists of transactions in the form they are held (ie computer print outs/fiche copies) which I would hazard a guess is even less disproportionate effort.

[Amethyst]

Re: FSA do not intend an injunction against destruction of data post July 2001

With regards estimating claims....in the early days estimating occured a lot and was paid out on, then they got all narky about the estimates and we needed the data to prove the charges....and they stopped complying with DPA requests past 6 years (and within 6 years quite a bit). Estimating will have to be a particular method laid out by the court I think. The difficulty is where people have had massive charges in 2001/2002 and then sorted things out so there no average etc to use.

The FSA NEED to be communicating with the ICO on stopping destruction of data between July 01 and April 03 ..... I have no faith whatsoever in the FSA placing sanctions on companies who do just wipe pre 6 years out at all.

[EXC]

Re: FSA do not intend an injunction against destruction of data post July 2001

In a letter dated Sept 07 from an FSA lawyer it states:

''Under conditions (5) and (6), firms must keep records of complaints received and preserve records of current accounts so that they remain availble for the consideration of existing or future complaints.''

Surely it must be making reference to statements 6 years back from July 07? It

[ROBSTER]

Re: FSA do not intend an injunction against destruction of data post July 2001

Comes backto my concerns in this post on 9/3/09:

I too agree on the s32, I firmly believe that The clock started ticking in February 2006 when”a reasonable person" first realised that these fees may well equal more than the actual cost of administration so there are six years to make the claim from then (i.e. until Feb. 2012) and you should be able to go back as far as records exist up until that time.

(But in January 2012 how far back will records exist?)

My problem is rooted in "the other" six year rule of the Data Protection act (i.e. Companies must keep six years of records) which I fear has been overlooked.

So unless you happen to have all of your statements you are likely to be at the mercy of the bank's compliance department. You do not need to be a rocket scientist to realise that at some point it will save banks £Bns not to supply data to the stragglers (who are in the majority at the moment by about 4:1) who have not yet staked their claim.

I Fear we might have a new task of estimating the charges from the years where the data can not be provided as banks are probably making "genuine mistakes for which they are truly sorry" by destroying any data over six years old in order to comply with Companies House "guide lines" and Inland Revenue "tax rules guidance". There you go Mr Banker, copy and save that statement, that will save you having to think on your feet should accidently destroy crucial evidence.

KEEP THE PRESSURE ON LB'S THE MORE THE BANKS REALISE WE'RE ON THE CASE THE LESS CHANCE THEY HAVE OF MAKING "GENUINE ERRORS"!!

[Amethyst]

Re: FSA do not intend an injunction against destruction of data post July 2001

Have asked for a full copy of the 19 March letter..

We now have this letter, and its appendices, will be scanned in this eve hopefully xxx

interesting

[Glenn UK]

Re: FSA do not intend an injunction against destruction of data post July 2001

FWIW

IMHO the only way to defeat this issue is by taking the banks to Court over data production and it is useful if the claimant at least has some evidence to confirm what they suspect (but not essential although having said that, a mere suspicion is not enough the courts wont support your fishing expdirtion i doubt).

The ICO will not (unless they have changed their view) do anything to support you, their view is that if the banks keep data for 6 years then they are doing enough. So if the bank says it only has six years worth of data then unless you can provide unequivocally they hold data longer then the ICO wont be bothered.

I took the Co-op to court for non -compliance when they produced data only up to 6 years old and ended up with data 9 years old.

The DPA discovers data and due to changes in the way the ICO interpreted their definition of data, it now covers pretty much anything based on a couple of bits of case law which i cant remember the names of off the top of my head) and would include almost any storage system. Upon questioning in the ICOs view this even went as far as paper records held in buff folders such as personnel records. Which in most companies are fairly unstructured in my experience.

Anyway, if a FI says it has data but refuse to provide it under the DPA then they are ripe to be challenged.

There is a form of words which will protect the claimant to some extent to the possibility of having costs awarded against them by giving the FI the option to enter a sworn statement into court that they do not hold any data which they are liable to provide but have not provided or something along those lines.

JMHO

Glenn

[ROBSTER]

Re: FSA do not intend an injunction against destruction of data post July 2001

Just a wee note - the DPA does not cover statements - it does cover lists of transactions in the form they are held (ie computer print outs/fiche copies) which I would hazard a guess is even less .

This dispropotionate effort "cop out" needs to be quashed if a court case is required then so be it, as I understand it they need to supply the information to a would be claimant under CPR (at some stage) any way.

Although alot of would be claimants will take the "disproportionate effort" fob off as gospel in the early stages of a claim and therefore not receive the refund they deserve.

At the risk of repeating myself, I just posted this on Natties thread Re FSA re-newing the Waiver:

Nattie,

I think amethyst is on the case but since you asked my main concern is the destruction of any data which might otherwise be crucial to a court claim (i.e. statements before July 2001). At this stage the FSA have an obligation to ensure that no Shred & Burn tactics are employed by the banks to give themselves an obvious advantage & damage limitation.

I believe there could be some press interest in this (and we might be able help the banks “avoid a scandal!”).




ALSO MOST OF THE TERMS OF THE WAIVER ONLY BENEFIT EXISTING CLAIMANTS (IE THEY WONT OR SHOULDNT DESTROY DATA WHERE THERE IS AN EXISTING CLAIM).

WHAT ABOUT THE DATA OF WOULD BE CLAIMANTS FOR THE FUTURE ?????

PLEASE TELL ME THE FSA ARE NOT GOING TO LET THAT LOT (AND I MEAN LOT....I ESTIMATE THAT LESS THAN 25% OF POTENTAIL CLAIMANTS HAVE REGISTERED THEIR CLAIM) "SLIP THROUGH THE NET"

[Glenn UK]

Re: FSA do not intend an injunction against destruction of data post July 2001

This disproportionate effort "cop out" needs to be quashed if a court case is required then so be it, as I understand it they need to supply the information to a would be claimant under CPR (at some stage) any way.

Although a lot of would be claimants will take the "disproportionate effort" fob off as gospel in the early stages of a claim and therefore not receive the refund they deserve.

At the risk of repeating myself, I just posted this on Natties thread Re FSA re-newing the Waiver:

Nattie,

I think amethyst is on the case but since you asked my main concern is the destruction of any data which might otherwise be crucial to a court claim (i.e. statements before July 2001). At this stage the FSA have an obligation to ensure that no Shred & Burn tactics are employed by the banks to give themselves an obvious advantage & damage limitation.

FWIW

A couple of issues are raised in here which I think it worth considering.

There is no obligation for FI to hold data for any specific period nor is there any measure specifically preventing the If from destroying data as i recall. However, the ICO did say to me some while ago that they would take a dim view of organsiaitons destroying data to avoid revealeing it alone. If they have a policy about data retention then that should define how long they keep data and when they destroy it. Getting a FI to reveal their policy might not be that easy though.

In court they will hide behind the 'statement of trtuh' and their reprasetnatives 'honesty'.

Therefore the destruction of data is not covered in the context that the organisation holding the data is obliged hold data for the length of the accounts life for example. The fact is does or may do does not mean it has to as far as i am aware.

The key issues for claimants wishing to obtain data outside of the 6 year period often quoted by the FI is to find or obtain something which specifically confirms that the organisation does in fact hold data. information such as original applications, credit agreements, etc would all be useful for confirming that they do in fact hold records longer than the 6 year period.

when it comes to disproportionate effort, for an organisation to use this argument they must effectively show that the records re not in regular use. This does not mean an individuals records but rather the system.

it would be perverse for them to argue (but they will anyway) that your records are not easily accessible and yet they use the system every day in the conduct of their normal business.

Abbey used this argument but the ICO told them don't be so daft!!.

Glenn

[natweststaffmember]

Re: FSA do not intend an injunction against destruction of data post July 2001

More from me on this one after I speak with Amethyst as I have some fresh info.

[Amethyst]

Re: FSA do not intend an injunction against destruction of data post July 2001

Lovely - seen the email from Stuart - good timing as we received the full 19th march letter today from the fsa. The bulk of the letter is regarding financial difficulty so there is basically only that one paragraph referring to supply of data. The letter does state they expect companies to be proactive but nothing further than what they quoted me in the original FOI response.


Rbs response from hesters office to nattie...

Have the SAR team been made aware of a letter sent from the FSA on 19th March 2009 with regards to the FSA Waiver on Bank Charges Point 13.5?

The simple answer is yes they have and where we receive a request for statements going back to 2001, we provide them.

Furthermore, there is no legal framework for restricting Data under the Data Protection Act 1998 to a timescale. Can I ask why there is such a restriction on personal data since it is not prescribed within the DPA 1998?

A SAR applies to the personal data held by the data controller at the time when the SAR is made, it doesn't matter how old the data is.

19th march covering letter (have posted the content of the annex's on a seperate thread - FSA hardship guidance to firms - march 2009 - Legal Beagles - as they deal with hardship)

Dear Mr Tools


Freedom of Information right to Know request


thankyou for your request under the foi 2000 for a copy of the letter issued on 19th march 2009 to all firms that have a waiver.


your request has now been considered and the relevant information is attached.


we thought it might be helpful to put the document in context. firms were first granted a waiver in 2007, in relation to dealing with complaints about the level fairness or laawfulness of unauthorised overdraft charges. that waiver included consumer protection measures to ensure that people were not disadvtaged while the waiver was in place (the waiver has subsequently been extended and renewed)


We also carry out on going monitoring work in relation to firms' compliance with the waiver the letter to banks and attached annex is part of this work.


yours sicnerely


mrs spies



xx

LETTER 19th MARCH to banks as follows;

Dear Lawyer/Compliance[delete as applicable]


GENERAL MODIFICATION BY CONSENT DISP RULES


I refer to the waiver by consent of certain rules in the FSA dispute resolution manual ( '' DISP '' ) In respect of the handling of unuthroised overdraft charges complaints. As you are aware the FSA has extended the existing waiver until 26th july 2009.


The waiver is conditional on compliance with the conditions contained in it. If a firm belives at any time that it has not complied with a condition of the waiver it should notify the FSA immediately.


We will continue to assess whether the waiver remains appropriate and following the recent ruling from the court of appeal it is appropriate to draw your attention to the following points.


waiver condition 13(21)

as you will be aware condition 13(21) of the waiver provides that a firm must not make any change to the level or structure of its unauthorised overdraft charges however if a firm proposes to do this then it may apply to the fSA for a variation of this condition.


we would like to emphasise that firms considering making such an application should contact the fSA well in advance of any proposed implementation date of the changes.


This will enable us to reapond to the application in good time.


Firms are also encouraged to discuss with the FSA in advance how they plan to approach conducting the required analysis of the impact of the proposed changes.


Waiver condition 13 (5)
This condition relates to the preservation of records that are (or could be) relevant for the handling of existing or future relevant charges complaints.


As this requirement has been in place since the first waiver in July 2007, we expect that firms will have taken pro-active steps to ensure that any systematic or routine procedures in place for destroying or archiving old records have been reviewed, to ensure that such processes could not cause the firm to be in breach of waiver condition 13 (5).

minimum Standards for handling complaints where financial difficulty is claimed

where a complaint about bank charges also contains an additionl element where the customer is claiming or indicating they are experiencing financial difficulties we note that firms ( either individually or through the BbA ) have confirmed they will adopt minimum standards for handling such cases (the annex ) These minimum standards were drawn up in response to findings from our ongoing waiver monitioring visis to firms which have indicated inconsistencies in the treatment of customers claiming financial difficulties and identified some failings in the sypathetic and positive treatment of customers in financial difficulty.

Our waiver monitoring work is continuing and will incorporate assessments of the extent to which a firms approach to handling complaints where financial difficulty is claimed is in line with these minimum standrads.

If you have any questions about this letter please contact either [FSA staff member] or [FSA staff member]

Yours sincerely

[FSA Staff member]

all spellings and dodgy bits mine. FSA hardship guidance to firms - march 2009 - Legal Beagles = hardship annex