Case Notes

Whether a credit reference agency (CRA) could retain a data subject’s consumer credit data after the discharge of bankruptcy.

The Enquiry

An enquirer was granted a discharge of bankruptcy but a credit reference agency refused to delete his relevant consumer credit data. The enquirer would like to know whether the CRA could retain the relevant data.

Our Response

The Commissioner issued the “Code of Practice on Consumer Credit Data” (the Code) by virtue of section 12 of the Ordinance after public consultation, to govern the actions of CRAs and balance the operational risk of CRAs and individual privacy rights.

Paragraph 3.3 of the Code stipulates that where a CRA has collected from a credit provider any account repayment data relating to an individual that reveals a material default (a default in payment for a period in excess of 60 days), the CRA may thereafter retain the account repayment data in its database until the earlier of:

1. 3.3.1 the expiry of 5 years from the date of final settlement of the amount in default (or final settlement of the amounts payable pursuant to a scheme of arrangement with the credit provider); or
2. 3.3.2 the expiry of 5 years from the date of the individual’s discharge from bankruptcy, as notified to the CRA by such individual and evidenced by the relevant certificate of discharge issued by the Court of First Instance or by a written notice from the Official Receiver stating that the Official Receiver has no objection to a certificate of discharge being issued to the individual, irrespective of any write-off by the credit provider of the amount in default in full or in part at any time after such default occurred (if such be the case).

On the other hand, paragraph 3.4B of the Code stipulates that where the account general data or mortgage account general data relating to an individual reveals a status of write-off due to a bankruptcy order being made against the individual, the CRA may retain in its database the account repayment data at the time of write-off until the earlier of:

1. 3.4B.1 the expiry of 5 years from the date of final settlement of the outstanding amount at the time of write-off (or final settlement of the amount payable pursuant to a scheme of arrangement made through the Official Receiver with the credit provider); or
2. 3.4B.2 the expiry of 5 years from the date of the individual’s discharge from bankruptcy, as notified to the CRA by such individual and evidenced by the relevant certificate of discharge issued by the Court of First Instance or by a written notice from the Official Receiver stating that the Official Receiver has no objection to a certificate of discharge being issued to the individual.

Should a CRA retain the repayment data of any account for longer than the retention period stipulated by the Code, it could constitute a contravention of Data Protection Principle 2(2) of Schedule 1 to the Ordinance.

(Uploaded in August 2024)