Untitled Texas Attorney General Opinion

GENERAL

AUSTIN, TPSAS 78711

The Honorable Wilson E. Speir Opinion No. H- 263
Director
Texas Department of Public Safety Re: Effect of Federal Fair
5805 N. Lamar Blvd Credit Reporting Act
Box 4087 on Obligation of DPS
Austin, Texas 78773 under Open Records Act

Dear Colonel Speir:

You have asked us about requirements of the Federal Fair Credit
Reporting Act that could be con&rued to conflict with the responsibility
of the Department of Public Safety under the state Open Records Act.

You have called our attention to an interpretation of the Federal
Fair Credit Reporting Act published by the Federal Trade Commission
in 16 C. F. R. $600.4, which classifies a state motor vehicle department
as a “consumer reporting agency” within the meaning of the Federal Act
if it sells reports containing information bearing on the personal character-
istics of a consumer.

You advise that the Department of Public Safety, in the event the FTC
interpretation is to be followed, has at least two’.types of reports which
would be affected: (1) driver’s license records of individuals, and (2) acci-
dent reports. You ask:

“(1) Must the Texas Department of Public Safety dis-
continue making available to users traffic records
more than seven (7) years old including records of
convictions for traffic offenses including driving while
intoxicated?

“(2) Must the Texas Department of Public Safety require
prospective users of information to identify themselves,

p. 1230
The Honorable Wilson E. Speir, page 2 (H-263)

certify the purpose for which the informationis
sought, and certify the information will be used for
no other purpose? ”

The Open Records Act adopted by the Texas Legislature in 1973
(Art. 6252-17a, V. T. C. S.) specifies that, with certain exceptions, “All
information collected, assembled, or maintained by governmental bodies
pursuant to law or ordinance, or in connection with the transaction of
official business is public information and available to the public. . . .‘I
[§ 3(a)]. There is no provision that such information loses its public
character after a Lapse of time.

The Open Records Act also prohibits the custodian of public records
from making any inquiry about the purpose of the request or the use td
which the information will be put (5 5b).

On the other hand, the Federal Fair Credit Reporting Act (15U. S. C.
1681, et seq.) requires that “consumer reporting agencies” furnish “con-
sumer reports” only for specified purposes to specified persons. A
“consumer reporting agency” is defined as “any person, which for mone-
tary fees, dues, or on a cooperative nonprofit basis, regularly engages in
&hot& orin part inthepiactice of~asclimblirig orevaludting conaumr &edit information
or othei tioiniation on consumers for the pueose of furnisliiig conibmer m*orts to
third parties.. ,.:,‘I Ihe term’brson”is deftied tb include ‘!govwment,.or goveitinzntal
subditiision’br agency, or otherentity.” ?he t&rm “consume? report”‘is defind with
certain e%xptions; to rnean”anywitten, oti.L, 0i othei conimhnicatiti ofany infor-
mation by a coiisumer reporting tigency bearing on a consume’t’s credi’t wort)linesg
ciediE&opding,ciedit cap&icy,character, general reputation, personal char-
acteristics, or mode of living which is used or expected to be used or col-
lected in whole or in part ” to serve ari a factor in establishing the consumer’s
eligibility for credit or insurance for personal or family purposes, employ-
ment purposes, or other authorized purposes. None of the stated exceptions
necessarily apply to information collected by the Department of Public Safety.

The Federal Act forbids the disclosure of certain information in
“consumer reports” after the lapse of various periods of time (15 U.S. C.
1681~) and requires prospective users of information to certify the purpose
for which it will be used (15 U. S. C. 168le).

p. 1231
Ihe Honorable Wilson E. Speir, page 3 (H-263)

If the published FTC interpretation that state agencies such as the
Department of Public Safety are “consumer reporting agencies” were to
be accorded the effect of law, the Supremacy Clause of the Federal Con-
stitution (Art. 6, cl. 2) would obviate any further inquiry. Where com-
merce is within the federal sphere of control, state legislation which con-
tlicts with the federal law must give way. See 72 Am. Jur. 2d, States,
Territories, and Dependencies, $ 16 et seq. But here we are free to
examine the question because the agency interpretation does not have that
effect. See 15 U.S. C. 168Ls(a).

The interpretation discussed above is one of six interpretations
adopted by the FTC and published in the Federal Register for February
23, 1973, vol. 38, no. 36, p. 4945. They appear as 16 C. F. R. § § 600. I
through 600.6. In the preamble to their publication, it is said:

“These final interpretations are issued pursuant to
$ I. 73 of the Commission’s procedures and rules of
practice. . . . *** The interpretations are not sub-
stantive rules and do not have the force and effect of
statutory provisions. They are guidelines intended
as a clarification of the Fair Credit Reporting Act,
and, like industry guides, are advisory in nature. ”
See 16 C. F. R. I. 71 through 1.73.

Our examination of the question leads us to conclude that the Texas
Department of Public Safety is not a “consumer reporting agency” within
the meaning of the Federal FairCredit Reporting Act, and that, conse-
quently, both your questions should be answered in the negative.

The Department of Public Safety does not regularly engage in whole
or in part in the practice of assembling or evaluating consumer credit
information on consumers “for the purpose of furnishing consumer reports
to third parties. ” Though the information it collects and evaluates for
governmental purposes may perhaps be used by others for other purposes,
that possibility has nothing to do with its collection, assembly, or evalua-
tion by the Department, which would collect, assemble and evaluate it in
the same wry even if it had no consumer credit utility.

p. 1232
The Honorable Wilson E. Speir, page 4 (H-263)

The FTC observed but did not formally recognize this distinction
in formulating another of the six interpretations published on February
23, 1973. In Lb C.F.R. 600.6 (as modified, 38 F. Reg. No. 46, p.6384,
1973), the FTC declared that “reporting activites of Federal agencies such
as the Civil Service Commission will not be included within the scope of
the Commission’s Fair Credit Reporting Act enforcement program. ” The
principal reason given by the FTC for that construction is that “the legis-
lative history of section 603(d) [I5 U. S. C. 168la(d)] indicates that the
!anguage was intended to refer to commercial enterprises engaged in
mutually beneficial exchanges of information. ” 16 C. F. R. 600. 6(c).

Moreover, another of the interpretations published that day [16
C. F. R. 600. 2(c)] held certain communications to be outside the Fair
Credit Reporting Act definition of “consumer report” because, it was
said, “the information was neither collected for consumer reporting pur-
poses nor can it reasonably be anticipated that it will be used in connec-
tion with a legitimate business transaction with the persons reported
upon. ” This’interpretation concerned “Protective Bulletins” issued by
trade associations end others consisting of lists of consumers who have
issued worthless checks or who for some reason may not be credit wor-
thy, etc.

The inconsistency of the FTC interpretations is inexplicable, but
we are of the opinion, in any event, that the Texas Department of Public
Safety is not a “consumer reporting agency” within the meaning of the
Federal Fair Credit Reporting Act. There is no conflict between the obli-
gations imposed upon the Department of Public Safety by the Texas Open
Records Act and any provision of the federal act, because, in our view,
the federal act does not apply to the Texas Department of Public Safety.
A congressional intent not to interfere with state laws except where en
inconsistency exists with the federal act is expressly stated in 15 U. S. C.
16 81t.

We point out that even though the Department of Public Safety is not
to be considered e “consumer reporting agency” under the federal act,
those persons who use (for consumer credit purposes) information received
from the Departmentare charged with certain duties by the federal low [I5
U.S. C. 168Lm(b)]. Failure to discharge these duties will subject the user
to penalties.

p. 1233
 - ,
. . .

‘I’he Honorable Wilson E. Speir, page 5 (H-263)

SUMMARY

The Texas Department of Public Safety is
not a “consumer reporting agency” within the
meaning of the Federal Fiir Credit Reporting Act
(15 U.S. c. 1681).

L