Decision Text
ALS,
Complainant,
-versus-
PLANTERS BANK,
Respondent.
x----------------------------------------------------x
ALS,
Complainant,
-versus-
CHINA BANK SAVINGS,
Respondent.
x----------------------------------------------------x
NAGA, P.C.;
Before the Commission is the Complaints-Assisted Form (CAF) dated 18 March 2022 filed by Complainant ALS (Complainant) against Respondent Planters Bank, now China Bank Savings (Respondent Bank), for violation of the Data Privacy Act of 2012 or Republic Act No. 10173 (DPA).
Facts
In his CAF, the Complainant narrated that he was a former depositor of Respondent Bank. Sometime on 11 August 2021, he requested a copy of his statement of account (SOA) from the time the accounts were opened up to its closure. Despite receipt of letter request, Respondent Bank did not give his SOA, thus he referred the issue to his lawyer. His lawyer subsequently sent a letter to the Data Privacy Officer of the Respondent Bank but received no response thereto.
The Complainant was constrained to bring the matter to the Commission, claiming his right to access to information as a former depositor of the Respondent Bank.
Complainant prays for damages since as a result of Respondent Bank’s refusal to give him the requested SOA, he felt humiliated and suffered sleepless nights and mental anguish. Complainant continues that Respondent Bank should be ordered to pay him moral damages in the amount of one hundred thousand pesos (PhP 100,000.00).
The Commission, through its Complaints and Investigation Division (CID), issued the Order (To File Verified Comment and Appear Virtually for Preliminary Conference) dated 25 March 2022, requiring the Respondent Bank to file its verified comment and for the parties to appear on 13 July 2022 and 10 August 2022 virtually for a preliminary conference.
In its Verified Comment dated 29 April 2022, Respondent Bank reasoned out that the requested bank statements have already been given to the Complainant as early as 20 May 2020, and were promptly given again on 07 September 2021 upon their receipt of his request. It continued that it has actively and timely addressed the concerns of Complainant since 2017 when he would often call and visit the Dolores Branch of the Respondent Bank.
Respondent Bank also counters that they were never informed of the alleged privacy violation to allow it to act appropriately on the same under Section 2, Rule II of NPC Circular 2021-01. It argued that the letter dated 20 December 2021 and addressed to their DPO was returned to sender. As proof, it submitted a screenshot of the courier’s tracking services on their website with the reference number showing that the “[s]hipment was returned to sender on 02/04/2022.”
Also, Respondent Bank stated that the Complainant is guilty of Forum Shopping under paragraph 10, Section 3, Rule II of NPC Circular 2021-01. Respondent attached the following pending cases before different tribunals:
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Attached as Annex “4” is a copy of the Complaint dated May 4, 2019 by the Complainant which was docketed as Civil Case No. 14803 before Branch 47 of the Regional Trial Court of San Fernando, Pampanga (Civil case complaint). The said Civil case complaint before the Court similarly sought bank account statements pertaining to the same/similar accounts mentioned in the instant Complaint. This Civil case complaint was dismissed on August 25, 2020 for lack of interest and non-compliance with a lawful Court Order.
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Attached as Annex “5” is a copy of the Complaint dated April 28, 2020 addressed to “BED” and the Financial Consumer Protection Department (BSP Complaint). This BSP Complaint was forwarded to the Bank on May 4, 2020 (Annex “5-1”) for appropriate action. The BSP complaint largely contained malicious, baseless and unfounded allegations of fraud against the Bank, presumably intended to put pressure on the Bank in the existing Civil case complaint at the time. The Bank timely replied on May 13, 2020 and already resolved this BSP complaint.
Respondent Bank asserted that the Complainant violated his sworn certification that he has not filed any other similar claim or action in any other court or quasi-judicial agency. It countered too that the Complainant violated his certification under oath that he would report within five calendar days the fact that a similar claim or action has been filed.
It was further alleged by the Respondent Bank that the Complainant has a recorded history of harassment, violence, threats and intimidation made against its employees. Sometime between 2017 to 2019, the Complainant purportedly made baseless accusations, threats and hurled unwarranted expletives to the employees of the Dolores Branch of the Respondent Bank, through several phone calls and branch visits. Employees of the said branch personally heard the Complainant utter statements such as “Putangina niyo ninakaw niyo pera ko kasama nanay ko! May araw din kayo!” while pointing fingers at them.
Respondent Bank continued that when the Complainant visited the said branch on 15 January 2019, he shoved and slammed the table of its Business Manager, ASL, hurting and pinning him against the wall, while shouting unfounded allegations and curses at him. A barangay blotter was made by ASL on the same date at Barangay San Agustin due to the violent, injurious, and threatening acts of the Complainant. However, the entry of this blotter is not in the files of the barangay anymore, or have been removed therefrom.
After the incident, Respondent Bank’s security personnel barred the Complainant from entering the branch. Respondent Bank also alleged that the branch employees personally saw the Complainant arrive with several men on a pick-up truck outside the branch, which gave the impression that their safety and security were in possible danger.
The branch employees were traumatized by the collective menacing acts and utterances of the Complainant against them and considers that the instant Complaint is another attempt by the latter to unjustly vex, harass, and intimidate the Respondent Bank into giving in into his claims which have long been addressed.
Respondent Bank prays for the outright dismissal of the Complaint. Counsel for the Complainant entered his appearance on 12 July 2022.
During the first preliminary conference scheduled on 13 July 2022, both parties appeared. Counsel for the Respondent Bank, EMB, manifested that “the respondent in these two cases is solely China Bank because in 2015, Planters Bank merged with the China Bank.” The parties also made the following stipulations, to wit:
- Respondent Bank admitted that the complainant is a former bank depositor;
- Respondent Bank denied that Complainant is entitled to bank statements, such as a SOA, since this has already been provided to the Complainant;
- The Complainant admitted that he filed the civil case complaint against the Respondent Bank requesting the same SOA;
- The Complainant also admitted that he filed the BSP complaint; and
- The Complainant denied the rest of the Respondent Bank’s allegations.
Since the parties manifested their willingness to undergo mediation proceedings under NPC Circular 2021-01, the second setting for preliminary conference was cancelled. The parties were also required to fill out the Application for Mediation Form and scheduled the mediation conference on 11 August 2022.
The Complainant executed his Application for Mediation on 20 July 2022, while the Respondent Bank executed its Application for Mediation on 22 July 2022. The CID issued an Order to Mediate on 22 July 2022 as well.
On 04 November 2022, the CID issued Notice of Non-Settlement of Dispute as the parties were unable to reach a settlement.
On 08 November 2022, the CID issued the Order (for Resumption of Complaints Proceedings, Requiring Respondent to Submit SOA, and Requiring the Parties to Submit Simultaneous Memoranda).
In Respondent Bank’s Memorandum with Compliance and Motion dated 09 November 2022, it reiterated its arguments in their Verified Comment, to wit: (1) Complainant is guilty of Forum Shopping; (2) there was no compliance with Section 2, Rule II of NPC Circular 2021-01; (3) the requested bank statements have already been given to the Complainant; and (4) Complainant has a recorded history of harassment, violence, threats, and intimidation made against employees of Respondent Bank. It also submitted copies of the SOAs of the Complainant, furnishing the latter thereof, and sealed inside an envelope given the confidentiality of the contents. Thus, Respondent Bank prayed for the outright dismissal of the Complaint.
On 15 November 2022, the CID issued an Order (Noting the Respondent’s Memorandum with Compliance and Motion and Reminding the Complainant to Submit his Memorandum).
In his Manifestation with Motion dated 29 June 2023, Complainant manifested that he will just adopt his Complaint as his Memorandum.
Issue
I. Whether the Complainant failed to exhaust administrative remedies;
II. Whether the Complainant is guilty of forum shopping; and
III. Whether the complaint should be dismissed for lack of merit.
Discussion
I. Complainant Complied With the Rule on Exhaustion of Administrative Remedies
On the procedural ground, Respondent Bank seeks to dismiss the instant case since it was supposedly never informed of the alleged privacy violation to allow it to act appropriately on it under Section 2, Rule II of NPC Circular 2021-01 (Rules of Procedure of the National Privacy Commission), which states:
SECTION 2. Exhaustion of remedies. – No complaint shall be given due course unless it has been sufficiently established and proven that:
the complainant has informed, in writing, the personal information controller (PIC), personal information processor (PIP), or concerned entity of the privacy violation or personal data breach to allow for appropriate action on the same; and
the PIC, PIP, or concerned entity did not take timely or appropriate action on the claimed privacy violation or personal data breach, or there is no response from the PIC, PIP, or concerned entity within fifteen (15) calendar days from receipt of written information from the complainant.
The NPC may waive any or all of the requirements of this Section at its discretion upon (a) good cause shown, properly alleged and proved by the complainant; or (b) if the allegations in the complaint involve a serious violation or breach of the Data Privacy Act of 2012, taking into account the risk of harm to the affected data subject, including but not limited to:
i. when there is grave and irreparable damage which can only be prevented or mitigated by action of the NPC;
ii. when the respondent cannot provide any plain, speedy or adequate remedy to the alleged violation; or
iii. the action of the respondent is patently illegal.
Contrary to Respondent Bank’s allegation, Complainant has informed them in writing of the privacy violation to allow them to take appropriate action on the same, not once, but twice.
To recall, Complainant stated in his CAF that he requested a copy of his SOA to the Respondent Bank through a letter request on 11 August 2021. He even alleged that Respondent Bank did not heed said request, which caused him to refer the matter to his lawyer. His lawyer subsequently sent a letter to the Data Privacy Officer of the Respondent Bank dated 20 December 2021 but received no response.
Respondent Bank counters that the letter dated 20 December 2021 attached to the Complaint addressed to its DPO was returned to sender. However, it did not deny the receipt of the letter request dated 11 August 2021 from the Complainant.
From the date of the receipt of the 11 August 2021 letter request, the Respondent Bank did not take timely or appropriate action on the claimed privacy violation and neither did it respond within fifteen (15) calendar days from receipt of written information from the Complainant.
Therefore, Complainant did not fail to exhaust administrative remedies under Section 2, Rule II of NPC Circular 2021-01.
II. There Is No Forum Shopping in the Present Case
Respondent Bank also asserts that the Complainant is guilty of Forum Shopping under paragraph 10, Section 3, Rule II of NPC Circular 2021-01. It also alleged that Complainant violated his sworn certification that he has not filed any other similar claim or action in any other court or quasi-judicial agency and that he violated his certification under oath that he would report within five calendar days the fact that a similar claim or action has been filed.
Section 3, Rule II of the NPC Circular 2021-01 provides for the forms and contents of a complaint, including:
- A certification against forum shopping must accompany the complaint. The complainant shall certify under oath in the complaint, or in a sworn certification annexed and simultaneously filed with the pleading: (a) that he or she has not commenced any action or filed any claim involving the same issues in any court, tribunal or quasi-judicial agency and, to the best of his or her knowledge, no such other action or claim is pending with such court, tribunal or quasi-judicial agency; (b) if there is such other pending action or claim, a complete statement of its present status; and (c) if he or she should thereafter learn that the same or similar action or claim has been filed or is pending, he or she shall report that fact within five (5) calendar days therefrom to the NPC. Failure to comply with the proper form and contents of the complaint may cause for outright dismissal under Section 1(1), Rule IV: Provided, an application that does not comply with the foregoing requirements may be acted upon if it merits appropriate consideration on its face, or is of such notoriety that it necessarily contains sufficient leads or particulars to enable the taking of further action.
In the recent case of The Heirs of Inocentes Mampo and Raymundo A. Mampo v. Josefina Morada, the Supreme Court explained:
Forum shopping is committed by a party who institutes two or more suits involving the same parties for the same cause of action, either simultaneously or successively, on the supposition that one or the other court would make a favorable disposition or increase a party’s chances of obtaining a favorable decision or action. It is an act of malpractice that is prohibited and condemned because it trifles with the courts, abuses their processes, degrades the administration of justice, and adds to the already congested court dockets.
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To determine whether a party violated the rule against forum shopping, the most important factor is whether the elements of litis pendentia are present, or whether a final judgment in one case will amount to res judicata in another. Otherwise stated, the test for determining forum shopping is whether in the two (or more) cases pending, there is identity of parties, rights or causes of action, and reliefs sought.
Hence, forum shopping can be committed in several ways: (1) filing multiple cases based on the same cause of action and with the same prayer, the previous case not having been resolved yet (where the ground for dismissal is litis pendentia); (2) filing multiple cases based on the same cause of action and the same prayer, the previous case having been finally resolved (where the ground for dismissal is res judicata); and (3) filing multiple cases based on the same cause of action but with different prayers (splitting of causes of action, where the ground for dismissal is also either litis pendentia or res judicata).
These tests notwithstanding, what is pivotal is the vexation brought upon the courts and the litigants by a party who asks different courts to rule on the same or related causes and grant the same or substantially the same reliefs and, in the process, creates the possibility of conflicting decisions being rendered by the different fora upon the same issues.
In relation to the test of determining whether there is forum shopping, there is no doubt that there is identity of parties in this case and the civil case complaint. In the civil case complaint before the Regional Trial Court of San Fernando, Pampanga (RTC San Fernando), the complaint indicates both the Complainant and the Respondent Bank as the parties.
On the other hand, it has been established through Respondent Bank’s counsel that the Respondents in these two cases are solely Respondent Bank, China Bank Savings, since Planters Bank already merged with China Bank in 2015.
The Commission also notes the similarity as to the reliefs sought by the Complainant in these two cases. In his CAF, Complainant primarily seeks to be provided a copy of his SOA from the Respondent Bank and for the award of moral damages.
As regards the civil case before RTC San Fernando, the Complainant also prays to be furnished “bank statements of checking account Nos. XXXX-XX-XXXXX, XXXX-XX-XXXX and No. [.] XXXX-XX-XXXXX and other accounts in the name of XXX and XXX” and the payment of moral damages, among other reliefs he sought on the said case.
Nonetheless, Respondent Bank’s argument still fails since the identity of rights or causes of action is wanting.
The cause of action in the civil case before the RTC San Fernando is for “Specific Performance/Delivery of Bank Statements,” while the cause of action of the case before the Commission is Complainant’s assertion of his right to access under the DPA.
Section 16(c) of the DPA reads:
SEC. 16. Rights of the Data Subject. – The data subject is entitled to:
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(c) Reasonable access to, upon demand, the following:
(1) Contents of his or her personal information that were processed;
(2) Sources from which personal information were obtained;
(3) Names and addresses of recipients of the personal information;
(4) Manner by which such data were processed;
(5) Reasons for the disclosure of the personal information to recipients;
(6) Information on automated processes where the data will or likely to be made as the sole basis for any decision significantly affecting or will affect the data subject;
(7) Date when his or her personal information concerning the data subject were last accessed and modified; and
(8) The designation, or name or identity and address of the personal information controller.
From the above provision, a data subject’s right to access under the DPA pertains to his entitlement to have access to his personal information upon due demand to the concerned personal information controller (PIC).
On the other hand, a case for specific performance is “the remedy of requiring exact performance of a contract in the specific form in which it was made, or according to the precise terms agreed upon. The actual accomplishment of a contract by a party bound to fulfill it.”
While the cause of action or right of a data subject to access under the DPA is based on law, the cause of action in a case for specific performance is mainly based on contract or primarily a contractual obligation.
Applying the above discussion, Complainant’s cause of action before this Commission is his right to access under the DPA, whereas his cause of action before RTC San Fernando is his claim for specific performance as to Respondent Bank’s contractual obligation as a banking institution to him as their depositor.
As regards the BSP complaint, Respondent Bank attached the letter dated 28 April 2020 allegedly written by the Complainant for the BSP Governor. The BSP complaint contains malicious accusations such as fraudulent participation, manipulation and stealing, allegedly committed by different institutions against the Complainant.
However, upon close perusal of the BSP complaint, it failed to specifically identify the Respondent Bank in the attached letter.
Despite this, the Respondent Bank answered the BSP complaint in their letter dated 13 May 2020 “RE: BSP Letter Complaint dated April 28, 2020 (DCRN-2020-0428-050),” wherein they refuted the assertions that they did not provide the subject SOAs to the Complainant.
The Respondent Bank also countered that the Complainant has already been provided with the SOAs, but he refused to recognize the said document, “claiming they were falsified” or that he was not satisfied with what was provided to him.
On this note, it bears stressing that one of the functions of the Commission under Section 7(b) of the DPA is the receipt of complaints and adjudicate the same as well as the resolution thereof as a collegial body.
To emphasize this adjudicatory function in the context of the principle of forum shopping, a complainant can still raise a violation of the DPA before the Commission even if there is another matter pending in another forum. The Commission’s jurisdiction covers matters that are also under the jurisdiction of other regulators. Hence, even if Respondent Bank’s alleged failure to provide the SOA violates banking laws, it can still result in a violation of the DPA.
Clearly, the parties, causes of actions, and reliefs sought are not similar in the BSP complaint and in the instant case. Therefore, forum shopping is not present in this case.
III. Complainant Failed to Provide Substantial Evidence to Support His Claims
At the onset, Complainant prays for damages as a result of the Respondent Bank’s refusal to give him the requested SOAs, causing him humiliation, sleepless nights, and mental anguish.
Nevertheless, as part of its Compliance, Respondent Bank already submitted copies of the subject SOAs and sealed the same in an envelope given the confidentiality of its contents. The Commission noted this Compliance by the Respondent Bank in relation to the CID’s Order dated 15 November 2022.
In his last submission, the Complainant did not evince or deny that it had received a copy of the Respondent Bank’s Memorandum along with the submitted copies of the subject SOAs. Complainant even conceded that upon expiration of the period given to submit their respective Memoranda, the case shall be considered for resolution with or without the submission of the pleadings required. Finally, Complainant manifested that he will just adopt his CAF as his Memorandum.
Section 2, Rule VII of NPC Circular No. 2021-01 provides for the effect of a party’s non-submission of Memorandum, viz:
SECTION 2. Submission of simultaneous memoranda. – The investigating officer shall require the parties to submit simultaneous memoranda discussing and summarizing their respective causes of action, claims, and defenses within fifteen (15) calendar days from written notice. The memoranda must also include, in simple tabular form, a list of all the evidence presented by the party and purpose to his/her claim or defense. Failure to submit the memorandum within the period provided shall be considered a waiver of such opportunity.
Hence, since the Complainant did not submit his Memorandum and merely adopted his CAF in lieu thereof, he waived the opportunity to present countervailing evidence against the Respondent Bank, such as his non-receipt of the subject SOAs.
In this regard, the Commission emphasizes that administrative cases, such as this case, require substantial evidence, or “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Aside from the letter requests that he attached with his CAF, Complainant did not present any evidence to support the conclusion that his right to access under the DPA has been violated by the Respondent Bank.
Moreover, “[i]n view of the basic rule that mere allegation is not evidence and is not equivalent to proof, the allegation is essentially self-serving and devoid of any evidentiary weight.”
Also, it bears stressing that the letter requests are not covered by the right to access under the DPA. Section 8(b) of NPC Advisory No. 2021-01 (Data Subject Rights) excludes the right to access on any analysis made by the PIC with respect to a data subject’s personal data, i.e. inferred, derived, modeled, or business-generated data. Here, Complainant’s request for the SOA of his business may not be covered by the right to access since it concerns the financial information of the business entity rather than personal information.
Given that the only available evidence is the compliance and submissions by the Respondent Bank, the Commission rules to dismiss the instant complaint since Complainant’s request is not covered by the right to access under the DPA and for lack of substantial evidence to prove that Complainant’s right to access has been violated by the Respondent Bank. Moreso, the submission of the subject SOAs rendered the instant complaint moot and academic.
WHEREFORE, premises considered, the Commission resolves that the instant Complaint filed by ALS against China Bank Savings is hereby DISMISSED for lack of merit.
This is without prejudice to the filing of the appropriate civil, criminal, or administrative cases against the Respondents before any other forum or tribunal, if any.
SO ORDERED.
City of Pasay, Philippines. 17 September 2024.
JOHN HENRY D. NAGA Privacy Commissioner
I CONCUR:
LEANDRO ANGELO Y. AGUIRRE Deputy Privacy Commissioner
NERISSA N. DE JESUS Deputy Privacy Commissioner
Copy furnished:
ALS Complainant
RCM Counsel for the Complainant
EMB Counsel for the Respondent
COMPLAINTS AND INVESTIGATION DIVISION ENFORCEMENT DIVISION GENERAL RECORDS UNIT National Privacy Commission