UNITED STATES OF AMERICA
FEDERAL TRADE COMMISSION
WASHINGTON, D.C. 20580
June 11, 1998
Matthew B. Halpern, Esq.
Jackson, Lewis, Schnitzler & Krupman
1000 Woodbury Road
Woodbury, New York 11797
Re: Sections 603(d) and 605 of the Fair Credit Reporting Act
Dear Mr. Halpern:
This is in response to your letters of December 8, 1997, and December 15, 1997,
request-ing the views of the Commission's staff on the following questions involving the
application of the Fair Credit Reporting Act ("FCRA") to the activities of your
1. If an employer obtains only driving records and criminal records
information about potential employees from a third party, is the information covered by
Yes. Section 603(d)(1) of the FCRA defines "consumer report"
to mean any oral, written or other communication by a consumer
reporting agency (CRA)(1) bearing
on a consumer's "credit worthiness, credit standing, credit
capacity, character, general reputation, personal characteris-tics,
or mode of living" which is used, expected to be used, or
collected in whole or in part for the purpose of serving as a
factor in establishing a consumer's eligibility for, inter
alia, credit, insurance, or employment. To be a consumer
report, information in the report need relate to only one of the
characteristics enumerated above. Since driving records and criminal
records do con-tain information about a consumer's character,
general reputation, personal characteristics, or mode of living,
these types of information are covered by the definition of "consumer
report." I have enclosed another staff opinion letter (Poquette, 6/10/98) that discusses this point.
When an employer obtains information from a CRA about the driving record or the
crim-inal record of an individual, the employer is a "user" of information
covered by the FCRA and must comply with all provisions of the FCRA that apply to users of
information obtained from CRAs. The most significant of these provisions are Sections
604(b) and 615(a), which require users of information for employment purposes to make
various disclosures when adverse actions are contemplated and taken based upon consumer
2. A bank subject to regulation under the Financial Reform Recovery and
Enforcement Act (FIRREA) of 1989 is prohibited from hiring individuals who have, at any
time in their life, been convicted of certain crimes. May a consumer reporting agency
provide to a client who is a bank information about criminal records that predates the
report by more than seven years so that the bank may comply with FIRREA?
Section 605 of the FCRA limits the information that may be reported by a CRA. In
particular, Section 605(a)(5) prohibits a CRA from reporting records of arrest,
indictment, or conviction that, from the date of disposition, release, or parole, antedate
the report by more than seven years. Unfortunately, there is no exception in the FCRA that
would permit a CRA to report criminal records beyond seven years in the situation you
raise where federal law requires a bank to check criminal records beyond seven years.
However, we note that a bank or other entity that checks records on its own is not covered
by the FCRA, and therefore may conduct searches without regard to the FCRA's time limits.
I hope that this information is helpful to you. The views that are expressed in this
letter are the views of the Commission's staff and do not necessarily represent the views
of the Commission or of any individual Commissioner.
Division of Credit Practices
1. It appears clear that the commercial service you describe
would be a "consumer report-ing agency" (i.e., the service regularly
assembles or evaluates "consumer report" information for sale to third parties).