Excel PCN NTK

Coupon-mad

This is what your letter said to them, so the ICO complaint is what you do in October, because they refused to delete your data despite both parties agreeing the common ground that they have not served a POFA PCN and can't hold the keeper liable, and they have no data showing who was driving.

And if they have admitted they are not using the POFA then they have admitted you are not liable, cannot make any presumption in law, and must delete your data. Failure to do so now, will result in a complaint to the Information Commissioner next month.

But reply to the DPO at Excel first to try to let them dig their hole deeper:

It is important we highlight that we will continue to pursue this matter on the reasonable assumption that you were the driver of the vehicle on the date in question until information/evidence to the contrary is provided.

Your reply to that should be:

It is important that I highlight that there is no such 'reasonable assumption' to be drawn. It would be your claim to prove, and the burden on identifying the driver (because you didn't use the POFA) falls with the Claimant, not the Defendant.

A keeper is perfectly at liberty to state (as I have) that I am just the registered keeper and that I was not driving, and there is no lawful presumption of a keeper being the driver. Nor does a keeper have any obligation under the POFA to say who was driving, and no adverse inference can be drawn from this perfectly lawful stance against a notorious private firm with an unwarranted (Parliament called it a 'scam') charge.

And re this bit:

we are not able or permitted to immediately erase all data relevant to you for the following reason(s).

We do not rely on consent as the purpose for processing data, but utilise legitimate interest in respect of a parking charge notice being incurred which we believe you are liable for and therefore whilst the charge remains unpaid, we are not obliged to comply with your request as this would inhibit our ability to pursue the debt.

State that they are certainly 'able and permitted' to erase your data, and their reasoning in trying to justify continuing to process your data is flawed.

State that you know the parking industry sought advice from lawyers such as:

https://www.linkedin.com/pulse/gdpr-private-parking-katherine-neal

And you can see that Excel have spouted that solicitor's opinion, by wittering on about a 'legitimate interest'. But that is something that they simply do not have, when processing data of a male keeper who they KNOW was not driving, because the driver was female and you've told them already 'my wife borrowed the car and we think she input her own VRN by mistake'.

So, with no legitimate interest, and no consent to processing the keeper's data, you invite Excel's Data Protection Officer to revisit the reason for the refusal. Using Katherine Neal's summary (link her Linked In 'opinion'):

At least one of the following must apply in order for the processing of data to be legal under GDPR, which insists that:

1/ the data subject has consented to the processing; no, the data subject has objected

2/ processing is necessary for the performance of a contract to which the data subject is party; no, the data subject was not a party to the parking contract and Excel know the driver was his wife and have no evidence or lawful reason to fairly conclude to the contrary

3/ processing is necessary for compliance with a legal obligation; N/A

4/ processing is necessary in order to protect a person’s vital interests;
processing is necessary for the performance of a task carried out in the public interest; N/A

5/ processing is necessary for the purposes of the legitimate interests pursued by the controller or by a third party. No, because Excel know - and have been clearly informed in a timely manner - that the data subject was not the driver (and nor can an individual driver be held to be acting on an agency basis, somehow, 'on behalf of' the individual keeper they've borrowed the car from - Excel v Smith on Appeal, confirmed this) and it is common ground that Excel did not use the POFA, and cannot hold the keeper liable, so their KADOE excuse of having the data purely to 'enquire who was driving' is over and exhausted and is now void, and certainly cannot be twisted to start trying to hold the non-driving keeper liable outwith the POFA.

Tell the DPO they have no excuse not to supply the redacted VRN list to assist you in proving that your wife entered her VRN in error, and indeed it is in the public domain that Excel Parking Services Ltd were reportedly held to have altered/tampered with a VRN list from a PDT machine which they produce as 'evidence', in the decision made by a Skipton Court Judge, and then afterwards the facts were restated in the order by HHJ Gosnell declining Excel's appeal (ref: Excel v Ambler, case no. E1DP2061).

Therefore, if Excel can produce a VRN list from the PDT machine in Ambler they can produce a list in this case when specifically asked by the data subjects (the keepers of the two VRNs in question). Not that the data subjects have any faith whatsoever in Excel's fair processing of data or a VRN list that can be so easily tampered with, and this too will be raised with the Information Commissioner to investigate, once you get Excel's response.

poundofcarrots

Many thanks again Coupon. Very useful advice. Will keep you posted.

poundofcarrots

Just had a reply for the other ticket. Same stuff about having legitimate interest to pursue me for the parking charge and having reasonable assumption that I was driving.

However they have also done a search of their system and have no record of any ticket being purchased for the VRN I supplied (my wife's VRN). This is despite us having this 'lost' ticket.

The lying sods!

Coupon-mad

poundofcarrots wrote: »

Just had a reply for the other ticket. Same stuff about having legitimate interest to pursue me for the parking charge and having reasonable assumption that I was driving.

However they have also done a search of their system and have no record of any ticket being purchased for the VRN I supplied (my wife's VRN). This is despite us having this 'lost' ticket.

The lying sods!

Got them, just as planned!

Right, now send them the scan of said ticket and say, were you deliberately lying, or just negligent?

I would actually use those words. The fewer words the better. Hang them.

poundofcarrots

Excellent Coupon! Many thanks.

Castle

poundofcarrots wrote: »

However they have also done a search of their system and have no record of any ticket being purchased for the VRN I supplied (my wife's VRN). This is despite us having this 'lost' ticket.

The lying sods!

I wonder if they omit these "wrong VRN" payments from their accounts and VAT returns; I'm sure HMIT would be interested if they did!

Coupon-mad

I love this thread and the fact you have caught them lying.

Popcorn is on order.

poundofcarrots

It underlines how untrustworthy these private parking companies are and why forums like this exist and are so important. I'll keep you posted.

Out of interest, if this ended up proceeding to court (although it seems unlikely at present) I'm assuming that anybody presiding over such a case would take a pretty dim view of this practice, but would it be enough in itself to change things legally?

Coupon-mad

On its own, no.

The likely claim will be won by you (I expect) on the usual defence points that this charge is not 'an understandable ingredient of a scheme serving legitimate interests' (para 199 of the Beavis case decision). It has no deterrent value and the tariff was paid, the signs were not prominent, penalty terms not clear, etc.

There is more than one defence all about PDT car parks here right now.

Umkomaas

Out of interest, if this ended up proceeding to court (although it seems unlikely at present) I'm assuming that anybody presiding over such a case would take a pretty dim view of this practice, but would it be enough in itself to change things legally?

Nobody here will second guess a Judge.

'Changing things legally' will not happen in the small claims court. A Judicial Review might - if you've got £40k to kick things off!

One for the big (wallet) boys!