A Refresher on Responding to Consumer File Requests under Section 609 of the FCRA

Summary

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AGG Talks: Background Screening

Episode Summary

Episode Title: A Refresher on Responding to Consumer File Requests under Section 609 of the FCRA
Date: October 29, 2021
Host: Henry Chalmers
Guest: Morgan Harrison
Firm: Arnall Golden Gregory LLP

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Episode Overview

This episode dives into the legal requirements and practical considerations for responding to consumer file disclosures under Section 609 of the Fair Credit Reporting Act (FCRA). Host Henry Chalmers and guest Morgan Harrison—both attorneys at AGG—explain what information consumer reporting agencies (CRAs) are obligated to disclose, analyze the Supreme Court's recent ruling in TransUnion LLC v. Ramirez, and discuss lower court decisions clarifying consumer rights and CRA duties.

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Key Discussion Points and Insights

1. What is Required by Section 609 of the FCRA?

[01:19 – 02:33]

• Consumer File Request Requirements

  • CRAs must provide, upon request, "all information in the consumer's file at the time of the request," the sources of that information, and the identities of anyone who has received a report about the consumer in the relevant timeframe.
  • "Section 609 of the FCRA requires CRAs to clearly and accurately disclose certain information to a consumer upon request… all information in the consumer’s file… sources… and [the] identity of each person or entity that procured a report." — Morgan Harrison [01:19]

• Definition of “Consumer File”

  • Courts define the “file” as all information recorded and retained by a CRA that either was or might be furnished in a consumer report.
  • Key exclusions: credit scores, audit trails, billing records, consumer relations file contents, and, upon request, the first five digits of social security numbers.
  • "There's a key limitation: the information has been or might be furnished in a consumer report. This doesn't mean everything…" — Morgan Harrison [01:48]

2. Identifying Recipients and Sources

[02:33 – 04:13]

• To Whom Disclosure Must Be Made:

  • CRAs must identify recipients of a consumer report within the last year (or two years for employment-related reports).
  • Recipients include potential employers, landlords, lenders, and resellers.

• Disclosure of Information Sources:

  • FCRA requires identification of sources, but doesn't define “source.” There's consensus that this includes courts and other CRAs.
  • Regarding third-party vendors (middlemen between CRAs and courts), some court decisions have permitted disclosing only the court rather than the vendor.
  • "The Ninth Circuit has warned that it’s not sufficient for a CRA to merely claim it doesn’t know the source of its information. So CRAs do have to make some effort…" — Morgan Harrison [03:45]

3. The Meaning of "Clear and Accurate" Disclosures

[04:13 – 04:41]

• Disclosures must enable consumers to compare their credit file against personal records for accuracy.
• “Courts have held that ‘clear and accurate’ means that the disclosure was made in a manner sufficient to allow the consumer to compare the disclosed information… to determine the accuracy…” — Morgan Harrison [04:22]

4. The Legal Landscape: TransUnion v. Ramirez

[04:41 – 07:25]

• The Supreme Court addressed Section 609 in TransUnion LLC v. Ramirez (June 2021).

  • Class action asserted TransUnion wrongly flagged consumers as potential matches to the OFAC list (e.g., terrorist suspects).
  • Key issue: Whether dual mailings—one with the alert, another with the summary of rights—deprived consumers of information needed to rectify errors before reports went to third parties.

• Court’s Ruling:

  • As long as consumers ultimately receive all information, the format (single or dual mailing) doesn't matter—unless a real injury results.
  • "The court rejected both arguments and essentially ruled that as long as consumers ultimately received all of the required information, it didn’t matter whether it arrived in a single mailing or in two separate mailings." — Morgan Harrison [06:27]

5. Lower Court Consistency and Standing Considerations

[07:25 – 08:29]

• The Supreme Court’s reasoning aligns with lower court cases, such as Puff v. TeleCheck Services, Inc. (Sixth Circuit, 2019).
  • Plaintiffs must show actual harm, not merely a technical violation of Section 609.
  • "A violation of section 609 often doesn’t have any actual consequences… As a result, the plaintiff has not suffered the type of injury required to pursue a claim in federal court." — Morgan Harrison [07:29]

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Notable Quotes & Memorable Moments

• On the Scope of “File”:

  “Courts have defined this to include all information on the consumer that is recorded and retained by a CRA that might be furnished or has been furnished in a consumer report...”
  — Morgan Harrison [01:48]

• On Disclosure Requirements:

  “The statute provides the CRA must disclose any recipient of information about the consumer within the one year period prior to the request or two years if the consumer report was furnished for employment purposes.”
  — Morgan Harrison [02:40]

• Regarding Source Disclosure:

  “The Ninth Circuit has warned that it’s not sufficient for a CRA to merely claim that it doesn’t know the source of its information. So CRAs do have to make some effort…”
  — Morgan Harrison [03:45]

• On Format of Disclosures (TransUnion v. Ramirez):

  “As long as the consumers ultimately received all of the required information, it didn’t matter whether it arrived in a single mailing or in two separate mailings.”
  — Morgan Harrison [06:27]

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Timestamps for Key Segments

• 01:19 – Fundamental requirements under Section 609
• 01:41 – Definition and limitations of “consumer file”
• 02:33 – Recipients and sources; key legal distinctions
• 04:13 – Clarifying “clear and accurate” disclosures
• 04:41 – Introduction to TransUnion v. Ramirez
• 06:27 – The Court’s analysis and implications for CRAs
• 07:29 – Lower court alignment and the need for actual injury

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Conclusion

This episode delivers a clear, practical refresher on what Section 609 of the FCRA demands from CRAs and how recent court decisions—including Supreme Court and appellate rulings—shape the rights of consumers and the obligations of background screening companies. The discussion lays out both the technical compliance framework and the real-world litigation risks, underscoring the importance of clear, accurate, and timely disclosures.

For more information, listeners are encouraged to reach out to the hosts with questions or feedback.

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Transcript

[A]

Hello, I'm Henry Chalmers, a partner with Arnold Golden Gregory in the firm's Atlanta office. I co chair our firm's Background Screening Industry team, and I'm the former co chair of the firm's Litigation Practice group. Welcome to our podcast series, AGG Talks Background Screening. Our podcasts feature AGG colleagues and guests discussing business and legal issues and developments related to the background screening industry. I'm here today with my colleague Morgan Harrison, an attorney in our Atlanta office and a member of our Background Screening Industry team. Today's episode will focus on full file disclosures under section 609 of the Fair Credit Reporting act and also the United States Supreme Court's recent analysis of that section in its TransUnion vs. Ramirez case. Morgan and I will begin by discussing the scope and meaning of section 609, followed by a brief discussion of the Ramirez case. So, Morgan, let's get started. First, why don't you explain the general requirements for responding to a file request from a consumer?

[B]

Sure. Section 609 of the SCRA requires CRAs to clearly and accurately disclose certain information to a consumer upon request, including all information in the consumer's file at the time of the request, the sources of that information, and the identity of each person or entity that procured a report on the consumer.

[A]

Great. So let's break that down a little bit. What constitutes a consumer's file?

[B]

Courts have defined this to include all information on the consumer that is recorded and retained by a CRA that might be furnished or has been furnished in a consumer report on that consumer. Now, that might sound broad, but there's a key limitation that the information has been or might be furnished in a consumer report. This doesn't mean everything. For instance, section 609A1 excludes from this file definition any information concerning credit scores, as well as audit trails, billing records, and the contents of a consumer relations file. It also excludes the first five digits of the consumer's Social Security number if he or she has requested their redaction for privacy purposes.

[A]

So in addition to turning over a copy of the file, who must a CRA identify in its response?

[B]

The statute provides the CRA must disclose any recipient of information about the consumer within the one year period prior to the request or two years if the consumer report was furnished for employment purposes. Recipients of information about the consumer are going to include end users such as potential employers, landlords or lenders, as well as resellers. In addition, Section 609 requires the CRA to identify the sources of the information within the consumer's full file. The FCRA doesn't define the term source, and no courts of appeal have done so either. But there's no debate that the term includes courts from which records are gathered. And the FTC has said that CRA should identify other cras from which they received information. This leaves the question about third party vendors who act as middlemen between a CRA and the courts. In a recent decision out of the Eastern District of Pennsylvania, a district court granted summary judgment to a CRA on the question of whether it willfully violated the FCRA when it disclosed the court source but not the identity of the third party vendor. The court didn't decide whether the omission could constitute a violation, but it did rule that the CRA's interpretation of section 609 to only require identification of the court was not unreasonable. Now, the Ninth Circuit has warned that it's not sufficient for a CRA to merely claim that it doesn't know the source of its information. So CRAs do have to make some effort to determine their sources.

[A]

Morgan, you mentioned earlier that a CRA's response to a file request has to be clear and accurate. What does that mean?

[B]

Sure. Courts have held that clear and accurate means that the disclosure was made in a manner sufficient to allow the consumer to compare the disclosed information from the credit file against the consumer's personal information and in order to allow the consumer to determine the accuracy of the information set forth in their credit file.

[A]

Got it. So, Morgan, in addition to advising our clients on FCRA compliance issues, you and I are both litigators, so let's turn to our specialty, which is lawsuits. Just a few months ago, the Supreme Court of the United states addressed section 609 in its TransUnion Ramirez decision. That was back in June of 2021. Now, the court also addressed section 607 in its decision. And that's the section that deals with following reasonable procedures to ensure maximum possible accuracy. So I'll go ahead and address that really quickly and then we can turn Back to section 609. Ramirez, as many of us know, was a class action brought under three different provisions of the FCRA, including section 607 and 609 class members alleged that TransUnion had identified them as potential matches. Foreign Assets Control List, which is also known as the OFAC list, which tracks people who are suspected of being terrorists. In some cases, TransUnion had actually reported that information to third parties. But in the majority of cases, TransUnion had not, and the information simply resided in. In TransUnion's internal consumer files. The Supreme Court accepted the jury's finding that the OFAC alerts and the consumers files were misleading. But the court went on to rule that the only consumers who suffered a concrete harm, and so the only consumers who are standing to sue under section 607 were those whose OFAC information, TransUnion had also reported to third parties. So that takes care of section 607. Morgan, take us back to section 609 and give us an overview of what the court had to say there.

[B]

Sure. In their Section 609 claim, the class alleged that TransUnion responded to their file disclosure request by sending two mailings to them. The first didn't include the consumer's OFAC alert, and while the second mailing did include the alert, it omitted the summary of right information. Class members argued that this dual mailing format put them at risk of not being able to correct their credit files before TransUnion reported the OFAC information to third parties. The United States also filed a brief in the case in which it argued that the class members suffered an informational injury as a result. The court rejected both arguments and essentially ruled that as long as the consumers ultimately received all of the required information, it didn't matter whether it arrived in a single mailing or in two separate mailings. The court was also swayed by the fact that none of the class members had identified any downstream consequences or injuries due to the formatting issue.

[A]

How does that decision fit in with other rulings from other courts?

[B]

It's consistent with recent case law in the lower federal courts. In the 2019 case of Puff v. TeleCheck Services, Inc. The the Sixth Circuit Court of Appeals likewise held the plaintiff who had alleged that the defendant CRA, failed to properly comply with this full file disclosure request, didn't have standing to pursue that claim because although his report omitted his driver's license was linked to six different bank accounts and omitted two transactions that occurred on those accounts, Hough did not show that the incomplete report injured him in any way. In so ruling, the court recognized that a violation of section 609 often doesn't have any actual consequences to the consumer or any real risk of harm. As a result, the plaintiff has not suffered the type of injury required to pursue a claim in federal court. In the Huff case specifically, the plaintiff couldn't show that had he received a clear and accurate disclosure, there would be anything to correct or that the report might cause him harm.

[A]

Great. That was really helpful. Thanks, Morgan.

[B]

Thank you for having me.

[A]

And we hope that you the listener found this discussion to be informative. If you have any questions or if you'd like to submit your feedback or topics for future podcasts, please reach out to Morgan or me. You can find our contact [e-mail]. future podcast episodes will be distributed through our AGG website and social media pages. Thank you for joining us today. Sam.