The Ninth Circuit recently rejected an interpretation of the Fair Credit Reporting Act’s disclosure obligation that would have significantly expanded what information credit reporting agencies (CRAs) must disclose upon consumer request.

The FCRA requires CRAs to disclose, among other things, “[a]ll information in the consumer’s file” and “[i]dentification of each person . . . that procured a consumer report.”  See 15 U.S.C. § 1681g(a)(1), (3)(A).  It also requires disclosure of “all inquiries received by the agency during the 1-year period preceding the request that identified the consumer in connection with a credit or insurance transaction that was not initiated by the consumer.”  Id. § 1681g(a)(5).

In Tailford v. Experian Information Solutions, Inc., — F.4th —, 2022 WL 599318 (9th Cir. Mar. 1, 2022), putative class action plaintiffs argued that Experian was obligated to disclose not only traditional credit reporting information such as credit accounts and debts, but also other information Experian maintained for other uses, such as certain soft credit inquiries and marketing attribute data including household income and purchase history.

The Ninth Circuit refused to read the disclosure obligation so broadly.  First, it explained that “consumer’s file” only encompasses information “that might be furnished, or has been furnished, in a consumer report.”  Because Experian had not and did not plan to include soft inquiries or marketing attribute data in a consumer report, the Ninth Circuit held it need not be disclosed.

The court further held that a soft inquiry does not result in “procur[ing] a consumer report” and so does not need to be disclosed under Section 1681g(a)(3)(A).  Last, it explained that Section 1681g(a)(5)’s requirement to disclose “all inquiries received . . . in connection with a credit or insurance transaction” was limited to “inquiries leading to a firm offer of credit,” and so did not include promotional inquiries.

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