A consumer reporting agency complies with § 1681k(a)(2) of the Fair Credit Reporting Act (“FCRA”) if it “maintain[s] 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.” In Kelly v. Business Information Group, the District Court for the Eastern District of Pennsylvania addressed whether this “complete and up to date” requirement means what it says and only requires current information, or, instead, whether it includes an “accuracy” component as well. Squarely addressing the issue, the court declined to read a requirement into § 1681k(a)(2) that the record be accurate. Not only will the court’s decision impact claims under § 1681k(a)(2), but it also could inform the interpretation of other FCRA claims, such as those under § 1681e(b), which include requirements related to accuracy, but not completeness.
In Kelly, the plaintiff alleged that he was denied employment opportunities based on adverse public record information in a consumer report that the defendant furnished to his employer. Specifically, he argued that the defendant erroneously reported that a judgment had been taken against him when the public record cited actually belonged to his son. Based on this allegation, the plaintiff claimed that the defendant failed to furnish “complete and up to date” information on him under 15 U.S.C. § 1681k.
The crux of the court’s analysis came down to the meaning of “complete and up to date” under § 1681k(a)(2). On this issue, the plaintiff argued that the report: (1) was not complete and up to date because it contained public record information that belonged to someone else; and (2) was not complete because it failed to include sufficient personal identifiers to allow the record to be linked to the plaintiff. The court rejected both of these arguments.
With respect to the latter argument, the court agreed with the defendant that the complaint failed to actually allege any missing information that would have enabled the defendant to determine whether the plaintiff was actually the subject of the report at issue. Therefore, the plaintiff failed to plead any facts to support his “missing personal identifiers” theory of liability.
With respect to the former, the court held that it would be inconsistent with the text and history of § 1681k to impose liability simply when a report included information belonging to someone else. Such an interpretation would be imputing a non-existent “accuracy” requirement to § 1681k.
According to the court, the text of § 1681k seeks to have a consumer reporting agency report the current public record status of an item in a report. It does not ensure that the current information is necessarily accurate. The court found that the structure of the FCRA also supports this interpretation. In the court’s view, another FCRA provision, § 1681e(b), is concerned with “maximum possible accuracy” of reports. As a result, the court believed that § 1681k(a) was designed to address a different concern – the need for current (as opposed to outdated) records.
The holding in Kelly is significant for consumer reporting agencies which provide public record information for employment screening because it adopts a narrow interpretation of § 1681k(a)(2). This narrow interpretation may limit liability in situations where a consumer reporting agency has elected not to send the notices provided under § 1681k(a)(1) but reports complete and current information that may ultimately prove to be incorrect.