(AAB Appeal No.15 of 2015)
The Appellant requested a credit reference agency to update his credit report after completion of his individual voluntary arrangement. The credit reference agency refused to delete the record of the individual voluntary arrangement but included the information that his individual voluntary arrangement was completed. The AAB considered that the credit reference agency had not contravened the Ordinance as it followed the relevant provisions of the Code of Practice on Consumer Credit Data.
Coram :
Mr. Yung Yiu-wing (Deputy Chairman)
Miss Carmen Chan Ka-man (Member)
Professor Horace Ip Ho-shing (Member)
The Complaint
The Appellant provided TransUnion Limited (“TU”) with a copy of a certificate showing completion of his individual voluntary arrangement (“IVA”) on 2 February 2015 and requested TU to update his credit report by deleting the IVA record. The Appellant lodged a complaint with the PCPD against TU upon its refusal to delete the IVA record.
The Commissioner’s Decision
The Commissioner noted that TU included the information “IVA completed on 2/02/2015” in the Appellant’s credit record but refused to delete the full IVA record in reliance of Clause 3.6.1 of the Code of Practice on Consumer Credit Data (“the Code”). As the said clause permitted a credit reference agency to retain the IVA record for seven years from the date of the event shown in the official record, the Commissioner found that the retention of the Appellant’s IVA record by TU was consistent with the said requirement of the Code and there was no prima facie evidence of contravention of the requirements under the Ordinance. The Commissioner then exercised his discretion not to investigate the matter further pursuant to section 39(2)(d) of the Ordinance. Dissatisfied with the Commissioner’s decision, the Appellant lodged an appeal to the AAB.
The Appeal
The Appellant argued that as he had become financially sound, any reference to the IVA should be deleted from TU’s record. He considered that the Commissioner’s claim of public interest was promoted at the expense of his private interest and thus was unfair to him. He also queried the rationality of the relevant clauses of the Code.
The AAB agreed with the Commissioner that the Code was the product of striking a balance between public interest and private interest. The AAB further explained that the Code had general application and there was no unfairness specifically directed to the Appellant. The issue was only to what extent one’s credit history should be contained in the credit report, and the AAB found that it was not the function or jurisdiction of the AAB to rewrite the Code or to review it and such relief had to be sought elsewhere.
The AAB further noted that the Code laid down guidelines for data users. If a data user did not follow the Code, he had to justify that his departure from the Code was nonetheless not in breach of the Ordinance. As a corollary, there might be exceptional circumstances under which mere compliance with the Code might not exonerate a data user. The AAB considered that there were no valid grounds for TU to depart from the relevant clauses of the Code and delete the IVA record from the credit report, as the credit history was an essential element for a credit provider to assess the risk of extending credit to an individual.
The AAB concluded that the decision of the Commissioner was correct and could not be faulted.
The AAB’s Decision
The appeal was dismissed.
(Uploaded in August 2017)