Judges: W.A. DREW EDMONDSON, Attorney General of Oklahoma
Filed Date: 5/16/2006
Status: Precedential
Modified Date: 7/6/2016
Dear Senator Crain:
This office has received your request for an official Attorney General Opinion in which you ask, in effect, the following questions:
1. Title 24 O.S. 2001, § 148[
24-148 ] of the Oklahoma Statutes, entitled "Request of consumer report — Notice to subject of report," requires the requestor of a consumer report for employment purposes to provide notice to the person who is the subject of the consumer report prior to requesting the report. Title 24 O.S. 2001, § 148[24-148 ](A) adopts the same meaning of "consumer report" as that term is defined in the federal Fair Credit Reporting Act,15 U.S.C. §§ 1681 —1681x ("FCRA"). Does the definition of "consumer report" in 24 O.S. 2001, § 148[24-148 ](A) include the exceptions to the definition of "consumer report" as adopted by the Fair and Accurate Credit Transactions Act of 2003, Pub.L. No.108-159 ("FACT Act"), as the exceptions are codified in15 U.S.C. §§ 1681a (d)(2),1681a (o) and1681a (x)?2. If the answer to Question 1 is "Yes," does 24 O.S. 2001, § 148[
24-148 ](A) require an employer in the state of Oklahoma to provide prior written notice and a copy of the report to an employee who is the subject of that report, if the report would be considered an investigative report and therefore an exclusion to the definition of a consumer report under the FACT Act?
Title 24 O.S. 2001, § 148[
A. Prior to requesting a consumer report for employment purposes, the requestor or user of the consumer report shall provide written notice to the person who is the subject of the consumer report. The notice shall inform the consumer that a consumer report will be used and the notice shall contain a box that the consumer may check to receive a copy of the consumer report. If the consumer requests a copy of the report, the user of the consumer report shall request that a copy be provided to the consumer when the user of the consumer report requests its copy from the credit reporting agency. The report sent to the consumer shall be provided at no charge to the consumer. As used in this section, "consumer report" shall have the same meaning as that term is defined in the federal Fair Credit Reporting Act,
15 U.S.C., Sections 1681 et seq..
Id. (emphasis added). This provision adopts the definition of "consumer report" as it is defined in the federal Fair Credit Reporting Act ("FCRA"),
The FCRA was enacted by Congress "to require that consumer reporting agencies adopt reasonable procedures for meeting the needs of commerce for consumer credit, personnel, insurance, and other information in a manner which is fair and equitable to the consumer, with regard to the confidentiality, accuracy, relevancy, and proper utilization of such information."
In 1999, the Federal Trade Commission ("FTC") issued a controversial advisory letter, which advised that third-party investigators hired by employers to perform investigations in the workplace, such as sexual harassment investigations, are "consumer reporting agencies," and that reports prepared by such investigators are "most likely `investigative consumer reports'" subject to FCRA. Letter from Christopher W. Keller, Attorney, Federal Trade Commission, to Judi A. Vail, Attorney 2 (Apr. 5, 1999) (on file with the Oklahoma Attorney General's Office),http://www.ftc.gov/os/statutes/fcra/vail.htm (last visited Apr. 10, 2006) [hereinafter Vail Letter]. See EmployeeMisconduct at 99; see also New Law Requires EmployersTo Give Disciplined Employees Summaries Of Third-PartyInvestigative Reports Regarding Workplace Misconduct, N.E. ED. 12 METRO. CORP. COUNSEL 11, Wilfred J. Benoit, Jr. Christopher B. Kaczmarek, Nov. 2004, at 21,http://www.metrocorpcounsel.com (last visited May 8, 2006) [hereinafter Workplace Misconduct]. Controversy ensued because the FTC was viewed as adopting the position that employers were required to provide advance notice to and obtain written consent from employees suspected of wrongdoing prior to an investigation, giving employees opportunities to frustrate any investigations by destroying evidence or intimidating witnesses. See Employee Misconduct at 99-100;Workplace Misconduct at 21.
The FACT Act addressed, among other things, the controversy engendered by the FTC's advisory letter by exempting from the definition of consumer report or investigative consumer report any report that otherwise would fall within that definition if: (1) the communication is made to an employer in connection with an investigation of (a) suspected misconduct relating to employment, or (b) compliance with federal, state, or local law, the rules of a self regulatory organization (such as the New York Stock Exchange or National Association of Securities Dealers), or any pre-existing written policies of the employer; (2) it is not made for the purpose of investigating creditworthiness; and (3) it is not provided to any person except (a) the employer or its agent, (b) the government, (c) an SRO [self-regulatory organization such as the New York Stock Exchange or National Association of Securities Dealers], or (d) as required by law.See
The rule that seems to be uniformly followed by the decisions of the courts of last resort of all the states which have had occasion to pass upon the subject is well stated in 168 A.L.R. 628, as follows: "In the absence of anything in the adopting statute and the circumstances surrounding its enactment to indicate a different legislative intent, the general rule of construction to be drawn from the cases is that a statute adopting and referring to another statute or to some of its provisions adopts and incorporates the provisions of the earlier statute as they existed at the time of the adoption, but not subsequent additions or modifications of the statute adopted, with the result that the operation of the adopting statute will not be enlarged, limited, or otherwise affected by the subsequent modification or repeal of the adopted statute."
Id.,
Title 24 O.S. 2001, § 148[
It is, therefore, the Official Opinion of the Attorney Generalthat:
Title 24 O.S. 2001, § 148[
24-148 ] of the Oklahoma Statutes, entitled" Request of consumer report — Notice to subject of report," requires the requestor of a consumer report for employment purposes to provide notice to the person who is the subject of the consumer report prior to requesting the report. Title 24 O.S. 2001, § 148[24-148 ] adopts the same meaning of "consumer report" as that term is defined in the federal Fair Credit Reporting Act ("FCRA"),15 U.S.C. §§ 1681 —1681t (2000). The definition of "consumer report" found in 24 O.S. 2001, § 148[24-148 ] does not include the exceptions to the definition of "consumer report" as adopted by the Fair and Accurate Credit Transactions Act of 2003 ("FACT Act") Pub.L. No.108-159 ,117 Stat. 1952 (2003) (codified as amended at15 U.S.C. §§ 1681 — 1681y (2005)).W.A. DREW EDMONDSON ATTORNEY GENERAL OF OKLAHOMA
JOANN T. STEVENSON ASSISTANT ATTORNEY GENERAL