CFPB Issues Advisory Opinions to Increase Background Screening Transparency for Tenants

The Consumer Financial Protection Bureau (CFPB) issued two advisory opinions on January 11. The first opinion clarifies provisions of the “Fair Credit Reporting Act” (FCRA) related to consumer file disclosures for tenants, while the second prohibits background screening agencies from reporting sealed or expunged records.

FCRA controls access to consumer report information, including credit report and criminal records, and is meant to promote “accuracy, fairness, and privacy” for consumers. The advisory opinions address several issues consumer and tenant rights advocates have raised with the CFPB. The first opinion clarifies that consumers who request access to the files used in their screening reports should receive the files to which they are entitled without being required to use key words such as “request” or “complete file” to obtain the requested information. Historically, credit reporting agencies (CRAs) have refused requests, or provided incomplete files, if a tenant requesting their file did not use certain key words in their request.

The opinion also requires that information provided to a consumer be in the same format as the information the CRA “provided or might provide to” a landlord, which will make it easier for tenants to interpret the information on their reports. Importantly, this change will make it easier for tenants to identify incorrect, incomplete, or inaccurate information and to discern what information may have led to a denial of residency. Finally, the first opinion notes that CRAs have an obligation to disclose the source of the information provided in consumer files, “both the original source and any intermediary [sources,]” used in compiling a report. This obligation will make it easier for tenants to identify and correct the source of incomplete, inaccurate, or outdated information.

The second opinion states that CRAs should not use expunged or sealed records, or records that have otherwise been legally restricted from public access, in their reports, nor should CRAs report on “arrests, criminal charges, eviction proceedings, or other court filings” without reporting the outcome of the filings. Moreover, the opinion states that CRAs must present information on court proceedings in such ways as make clear that “all stages relate to the same proceeding or case.” For example, reports often display multiple entries for the same case, which can give the appearance that a tenant has a long sheet of criminal charges, when in reality the report is simply listing multiple stages of the same court case.

Finally, the second opinion clarifies that CRAs should begin the seven-year period permitted for reporting evictions and non-conviction criminal records from the date of the event, rather than the date of disposition. For example, a CRA would only be permitted to report an arrest on someone’s record for seven years from the date of the arrest, rather than the date of the disposition.

Read the first and second opinions issued by the CFPB.

Learn more and read an analysis from the National Consumer Law Center on the opinions here.