Division of Financial Practices
Clarke W. Brinckerhoff
UNITED STATES OF AMERICA
FEDERAL TRADE COMMISSION
WASHINGTON, D.C. 20580
December 16, 1999
Mr. John L. Holland, Sr.
ADREM Profiles, Inc.
5461 West Waters Avenue
Tampa, Florida 33634
Dear Mr. Holland:
This responds to your letter asking the views of the Commission
staff on the applicability of the Fair Credit Reporting Act ("FCRA")
to the reporting by consumer reporting agencies ("CRAs")
of public record data for employment purposes.
First, you ask about CRA compliance with Section 613(a)(2) of
the FCRA, when an employer requests a report limited to specific
types of public record data. You report that employers "often
request that the CRA not report arrest data, open warrants, nor
(sic) probation information" on the consumer that they find
in the public record. Section 613(a) of the FCRA requires CRAs,
when providing adverse public record data to employers, to either
(1) notify the report subject or (2) maintain strict procedures
to ensure that the data is complete and up to date. In pertinent
part, the full text of Section 613(a)(2) provides:
"A (CRA) which furnishes a consumer report for
employment purposes and which for that purpose compiles and
reports items of information on consumers which are matters
of public record and are likely to have an adverse effect
upon a consumer's ability to obtain employment shall . . . (2)
maintain strict procedures designed to insure that whenever
public record information which is likely to have an adverse
effect on a consumer's ability to obtain employment is reported
it is complete and up to date. For purposes of this
paragraph, items of public record relating to arrests,
indictments, convictions, suits, tax liens, and outstanding
judgments shall be considered up to date if the current public
record status of the item at the time of the report is
reported. (Emphasis added).
We view this provision, which is specifically cast in terms of
"items of (public record) information" to require only
that each item reported be complete and up to date. For
example, if the CRA reports an indictment, it must also report
any dismissal or acquittal available on the public record as of
the date of the report. Similarly, if the CRA reports a conviction,
it must report a reversal that has occurred on appeal. We understand
that a report that deliberately omits arrest data at an employer's
request is not a "complete" reflection of every single
piece of information that might be gleaned from the public record.
Because we read Section 613(a)(2) as being item-specific, however,
we believe the CRA complies with that provision if its report
is "complete and up to date" in the sense that it includes
the current public record status each individual item reported.
Second, you ask about CRA compliance with Section 605 of the
FCRA, which forbids CRAs from reporting most adverse action that
antedates the report by seven years or more, in connection with
open warrants the CRA finds in the public record. You state these
warrants "range from capital crimes, violation of parole,
failure to appear for a court hearing to over due parking citations."
It is our opinion that Section 605 does not prohibit reporting
a warrant that is in fact "open" (i.e., no
arrest or other execution has occurred), regardless of how long
it has been outstanding. The Commission has made clear its view
that imprisonment may be reported for seven years after the release
from custody.(1) In the same manner
that the CRA may report confinement as long as it continues (and
seven years thereafter), we believe it may report a warrant as
long as it is "open" without violating Section 605.(2)
The views set forth in this informal staff opinion letter are
not binding on the Commission.
Clarke W. Brinckerhoff
1. "If the consumer is convicted
of a crime and sentenced to confinement, the date of release or
placement on parole controls. Confinement, whether continuing,
or resulting from revocation of parole, may be reported until
seven years after the confinement is terminated." 16 CFR
§ 600, App., 55 Fed. Reg. 18804, 18818 (May 4, 1990).
2. Of course, to the extent such an
item is included in a report for employment purposes, the CRA
must comply with Section 613, as discussed in the previous paragraph.
That is, the CRA must either notify the consumer as provided in
Section 613(a)(1), or maintain strict procedures to ensure the
item is complete and up to date in accord with Section 613(a)(2).