                                                                                  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<I&
                                                                       Attorney        General     of 7 ‘exas




                    DAVID     M.   KENDALL,         Chairman
                    Opinion   Committee




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