Credit card account history disclosed to estranged spouse

PIPEDA Case Summary #2006-331

(Principle 4.3 of Schedule 1)

One complainant was very upset to learn that a bank had disclosed the history on his credit card account to his estranged wife’s legal counsel.  The Assistant Privacy Commissioner concluded that the complainant had given his implied consent to the disclosure.  The complainant had asked the bank’s lawyer to include the credit card debt in an agreement between himself, the bank, and a number of parties, including his estranged wife, concerning the paying out of money being held in court after the sale of the couple’s home. 

The following is a detailed overview of the investigation and the Assistant Commissioner’s deliberations.

Summary of Investigation

The complainant and his then-wife had acquired the credit card some years earlier.  He was the designated cardholder; she, the secondary cardholder.  In 2001, the wife was removed from the account, and less than a year later, the couple legally separated.  According to the complainant, at the time of separation, there was substantial debt on the card.  The complainant believed that his ex-wife was responsible for half of the credit card debt up to the date of separation.  He was concerned, however, because the bank’s lawyer had disclosed information about the account well after (14 months after, in fact) the date of separation to his estranged wife’s lawyer.

At the time of the disclosure, the lawyer acting for the bank was attempting to negotiate a settlement between several parties respecting the paying out of money that was being held in court.  The money had been paid into court on an interpleader application^{Footnote 1} by a law firm that had handled the sale of the couple’s home.  Many parties, including the bank, the complainant and his estranged wife, were claiming an interest in the money. 

According to the bank’s lawyer, during the negotiations between all parties, it was agreed in principle that debts that had been incurred by the complainant and his wife jointly during the course of their marriage should be paid out of the money held in court.  The lawyer indicated that, one day, he received a message from the complainant (who was not represented by legal counsel at the time).  He stated that the complainant advised him that the credit card account, which was in the complainant’s name alone, should be included as a debt to be paid out of the money held in court.  According to the message taken by the lawyer at the time of the conversation, which the Office reviewed, the complainant said that his wife had agreed that she would be jointly responsible for payment of this debt.  The complainant cited an amount of approximately $10,000, the current balance at the time.

The bank’s lawyer wrote to the estranged wife’s lawyer, indicating that the complainant had advised him that he and his estranged wife wanted to have this debt paid out of the money held in court.  He also forwarded a draft consent order, detailing the bank’s claims.  (There were other debts beside the credit card.)  The order was signed by the complainant and the bank’s lawyer, and was to be signed by the other parties to the interpleader application, including the wife’s legal counsel.

The wife’s lawyer was surprised to see the credit card debt included on the order and asked for proof of the amount cited.  The bank’s lawyer then disclosed statements for the account beginning at around the time that the wife ceased to be a cardholder to the current date.  The statements detailed the dates, particulars and amounts of transactions.  The bank’s lawyer stated that when the complainant called him to have the credit card debt included, he gave an approximate balance, which was the most current balance.  When the wife’s lawyer asked for proof of that amount, the bank lawyer gave the account history information that matched the amount cited by the complainant.

The bank’s lawyer contended that, although his notes did not show that the complainant asked that a history be sent, it was at the complainant’s insistence that the debt was included in the consent order that the wife’s solicitor would sign.  The bank’s lawyer stated that it was implied as a matter of law that, when someone is being asked to be responsible for a debt, that individual is entitled to an accounting for such indebtedness.  According to him, he had an ethical obligation to engage in “full and frank disclosure with counsel opposite.”

The lawyer for the bank also maintained that, even if the complainant had not approached him about the credit card debt, the bank was entitled to the money, and was obliged to prove the amount owed.  He referred to a “Notice to All Claimants,” which was issued following the interpleader application.  It requires that parties making a claim in an interpleader application provide the particulars of their claims.  The bank lawyer referred to a Queen’s Bench Rule (in Saskatchewan), which states that “such applications (interpleader) shall be made by notice directed to the claimants requiring them to appear before the presiding judge in chambers at such time and place as may be designated in the notice and state the nature and particulars of their claims and either maintain or relinquish them.” He stated that particulars include how a debt is calculated and not simply the amount of the debt, and that this required providing the account history.

The bank’s lawyer explained that a consent order is used to save all parties the expense of having to argue a claim in court.  The consent order in this case, which the complainant had signed, showed that he wanted the credit card account paid from the money held in court.  The bank’s lawyer stated that any of the other parties could have requested the particulars of the bank’s claims.  The key fact for the bank’s lawyer was that the estranged wife was another claimant, and if a party (a claimant) requests the particulars, the information must be given.  In the view of the bank’s lawyer, the complainant should not have been surprised that the account history substantiating the amount of the debt was disclosed to his estranged wife’s lawyer.

Findings

Issued March 29, 2006

Application: Principle 4.3 states that the knowledge and consent of the individual are required for the collection, use, or disclosure of personal information, except where inappropriate.

In making her determinations, the Assistant Commissioner deliberated as follows:

• Based on the notes taken by the lawyer representing the bank, as well as the consent order, which the complainant signed, the complainant clearly consented to having the credit card debt of approximately $10,000 included in the bank’s claim in the interpleader application.  This consent order, she noted, was to be signed by the lawyer acting for the complainant’s estranged wife, as well as other claimants.
• When the complainant called the lawyer to have the debt included in the consent order, he gave the current amount. 
• As the bank’s lawyer contended, the bank is entitled to the money it is owed.  In order to support its claim that it was owed this amount, it provided, at the request of another claimant (the estranged wife), an account history that detailed how the amount was calculated. 
• In the Assistant Commissioner’s view, the complainant ought to have expected, when he told the bank’s lawyer to include this debt in the claim – a debt, she noted, that the complainant said his wife had agreed should be paid out of the money held in court – that the estranged wife, as another party to the interpleader application, could be provided with the details. 
• The Rules of Court, the Assistant Commissioner noted, required such accounting.  While she acknowledged that, strictly speaking, the Rule concerning claims requires that the particulars of the claim be given to a presiding judge, the claimants in this case were attempting to negotiate a settlement instead of going to court. 
• When one party, in this case the bank, makes a claim, it is logical that any of the other parties could ask for the particulars about that claim.
• The Assistant Commissioner therefore determined that there was no contravention of Principle 4.3.  The complainant expressly requested that the debt be included in the bank’s claim and, in doing so, gave his implied consent to the details of the debt being released to another claimant.

The Assistant Commissioner concluded that the complaint was not well-founded.