Judge Grants CFPB Petition Enforcing Demand for Information from Public Records Company

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Written By ESR News Blog Editor Thomas Ahearn

A federal judge in Texas has ordered a company located in the state that compiles public records to turn over information requested in a Civil Investigative Demand (CID) issued by the Consumer Financial Protection Bureau (CFPB) as part of a nonpublic investigation to determine whether consumer reporting agencies (CRAs) are violating the federal Fair Credit Reporting Act (FCRA).

On June 6, 2017, U.S. Magistrate Judge David L. Horan granted the CFPB petition to enforce the CID submitted in March 2017 and force the company – which is described on its website as “the number one resource for public records from local, state, and federal agencies” –  to turn over the information requested by the CID, which stated the CFPB exercised jurisdiction over the company under the FCRA.

The CFPB – created in 2010 under the Dodd-Frank Act – issued a CID to the company on January 5, 2017, “as part of a nonpublic investigation to determine whether consumer reporting agencies, persons using consumer reports, or other persons have engaged or are engaging in unlawful acts and practices in connection with the provision or use of public records information in violation of the FCRA.”

The CID required the company to produce documents and provide answers to questions and a written report by February 16, 2017. Pursuant to CFPB rules, the company filed a petition to set aside or modify its CID on January 25, 2017, arguing that the CID was improperly issued, could not be enforced, failed to adequately state the nature of the investigation, and had overbroad and irrelevant requests.

The petition also stated that because the company “is not a consumer reporting agency and does not create, use, or maintain consumer reports or files, the FCRA is not applicable.” On February 14, 2017, the CFPB denied the petition and served an order on February 16, 2017 directing the firm to “produce all responsive documents, items, and information” covered by the CID within 10 calendar days.

“Generally speaking, public record type sites are extremely important and  can be immensely valuable to many people and organizations with one significant exception – employers cannot use them for background checks unless both the employers and the web site are operating entirely under the FCRA,” explains Attorney Lester Rosen, founder and CEO of Employment Screening Resources® (ESR).

“Many public record sites are specifically not intended for employment use. However, if an employer misuses such a site to perform employment background checks outside of the protection of the FCRA, that can create serious problems for both employers and job applicants,” says Rosen. “The FCRA has numerous rules on accuracy and legal process to protect employers and consumers.”

Rosen – author of “The Safe Hiring Manual” and numerous whitepapers and articles on the subject of background checks – also adds that the lesson for employers is not to use any online service for employment without first making sure the web site is intended for employment and is FCRA compliant since an employer needs to ensure any screening program is consistent with the FCRA.

Employment Screening Resources® (ESR) is a global background check firm that is a strategic choice for employers wanting accuracy and FCRA compliance in their screening programs. ESR is accredited by the National Association of Professional Background Screeners (NAPBS®) and undergoes yearly SOC 2® audits to protect consumer information. For more information about ESR, visit www.esrcheck.com.

NOTE: Employment Screening Resources® (ESR) does not provide or offer legal services or legal advice of any kind or nature. Any information on this website is for educational purposes only.

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