UNITED STATES OF AMERICA
FEDERAL TRADE COMMISSION
WASHINGTON, D.C. 20580
Division of Credit Practices
Clarke W. Brinckerhoff
June 10, 1998
Ms. Susan Boesen Copple
Iowa Association of Homes & Services for the Aging
100 East Grand -- Suite 140
Des Moines, Iowa 50309
Re: State law enforcement
agencies - FCRA § 603(f)
Dear Ms. Copple:
This responds to your letter concerning
the application of the Fair Credit Reporting Act (FCRA) to criminal
history and other information that health care facilities are
required by state law to obtain through the Iowa Department of
Criminal Investigation (DCI).(1)
Your letter states that DCI is paid a fee for each such report.
You ask if DCI constitutes a "consumer reporting agency"
(CRA) under the FCRA.
In our view, a state agency such as DCI
that provides information such as criminal records checks to further
law enforcement or other policies mandated by the state legislature
should not be considered a CRA. It is well settled that the Federal
Bureau of Investigation (FBI), which also makes such reports to
employers, is not a CRA. Ricci v. Key Bancshares of Maine,
Inc., 768 F.2d 456, 466 (1st Cir. 1985); Ollestad v.
Kelley, 573 F. 2d 1109, 1111 (9th Cir. 1978). Although it
is possible to interpret the very broad terminology in the definition
of "consumer reporting agency" set forth in Section
603(f) to include a law enforcement agency such as DCI or the
FBI,(2) because they are paid a fee by employers when
they respond to criminal records inquiries, we agree with the
court in Ollestad that Congress intended no such result.(3)
We see no reason why a state law enforcement agency such as DCI
should be treated differently from the FBI.
In sum, it seems quite clear that DCI's
communication of criminal record and similar information to health
care employers is part and parcel of its law enforcement functions,
undertaken to further the decision by the Iowa legislature to
promote the public benefit by monitoring individuals employed
in that industry. We do not believe that DCI becomes a CRA under
the FCRA by virtue of executing those tasks.
The opinions set forth in this informal
staff letter are not binding on the Commission.
Clarke W. Brinckerhoff
1. You state,
"Since July 1, 1997, health care facilities licensed under
135C of the Iowa Code have been required to conduct criminal history
checks and dependent adult abuse checks on all new employees.
This applies to organizations such as skilled and intermediate
care nursing facilities as well as residential care facilities
for the elderly and the mentally retarded. State Law requires
the checks must be made through (DCI)."
2. Section 603(f)
The term "consumer reporting
agency" means any person which, for monetary fees, dues,
or on a cooperative nonprofit basis, regularly engages in whole
or in part in the practice of assembling or evaluating consumer
credit information or other information on consumers for the
purpose of furnishing consumer reports to third parties, and
which uses any means or facility of interstate commerce for
the purpose of preparing or furnishing consumer reports.
statute is concerned with regulating practices in the credit reporting
industry rath-er than with regulating the recordkeeping functions
of federal agencies. (Citations omitted). ... Congress did not
intend to place federal agencies within the purview of the FCRA."
573 F.2d at 1111.