MOTOR VEHICLE GRAND LIST ACCESS--UPDATE

After numerous complaints by the public last year, the Freedom of Information Commission ruled that Motor Vehicle Grand Lists Books are public record within the meaning of ss 1-200 (5), G.S. and that such records are not barred from disclosure by the Federal Drivers Privacy Protection Act (FDPPA). thus, the public agency was ordered to release the information.

However, the decision was appealed before the superior court, Pamela Davis et al v. Freedom of Information Commission, and heard before a judge. The judges decision is still pending and will be released any day. If the judge grants access, it will behoove private investigators to bring a copy of the decision to the assessors when requesting records. And if they fail to comply, include a copy of the decision  to any FOI request made in writing.

For up to date information of this case and all FOI matters, please visit their web site at www.state.ct.us/foi.

RAISED BILL NO. 6995-AN ACT CONCERNING PRIVATE INVESTIGATORS & SECURITY SERVICES-UPDATE

After almost fourteen months of meetings by various interested parties- including CALPI, with the Dept. of Public Safety Licensing Unit, a compromise bill was proposed know as Raised Bill No. 6995. If passed, this bill will make significant changes in how Private Investigators and Security Companies are regulated in the State of Connecticut. Unlike the old bill drafted over 30 years ago, this bill carries with it regulatory power to impose fines, suspensions and revocations of a license depending on the violation. This, it is imperative for all licensed investigators to read this bill as soon as possible and prepare to comply with the new regulations that could take effect next October. This bill can be seen in its entirety at http://prdbasis.ega.state.ct.us/2001/tob/h/2001HB-06995-R00-HB.htm If you have questions or need a more complete interpretation of this bill, please write to CALPI,Attn.: Legislative Committee.

MISCELLANEOUS LEGAL NOTES OF INTEREST

(Random Origins)

Federal Judge Makes Important Decision Re Application of Fair Credit Reporting Act

By Eddy McClain of the NCISS Legislative Committee

In one of the most publicized cases yet to come to trial concerning alleged violations of the Fair Credit Reporting Act, a Federal court has ruled that the report to an employer by a private investigator, who conducted an investigation of suspected drug use without the employee's permission, was exempted from the purview of the FCRA,

In the matter of Shane Salazar, plaintiff, v Golden State Warriors, Defendant, U.S.District Court, Northern District of California, No. C 99-4825 CRB, November 9, 2000. "A surveillance video and report, made by a private investigations firm, of an employee allegedly engaging in activity suggesting drug use were within the "transactions or experiences' exception to the Fair Credit Reporting Act"

The plaintiff's original complaint included seven causes of action:(1)violation of the fair Credit Reporting Act,(2)invasion of privacy,(3)breach of the covenant of good faith and fair dealing, (4)defamation,(5)wrongful termination in violation of public policy,(6) intentional infliction of emotional distress, and (7) negligence. Upon motion of the defendant, the Court dismissed the second, third, fifth, sixth and seventh claims for failure to state a claim upon which relief may be granted. Following the dismissal, the plaintiff amended his complaint to include a number of labor code/unpaid overtime claims and then both parties agreed to dismiss the defamation claim. This left the overtime issues and the alleged FCRA violation.

The defendant moved for partial Summary Judgment with respect to the first cause of action (violation of the FCRA) on the grounds that the FCRA does not apply as a matter of law to the videotape and report that the investigator submitted to the defendant because they fall within the "transactions or experiences" exception to the definition of a consumer report.(Section 603(d)(2)(a)(i))

The Court said, " the parties do not dispute that the videotape and report fall within the Act's general definition of "consumer report". What they do dispute is whether the videotape and report issued by the investigator are, nonetheless, outside the FCRA because they fall within the transactions or experiences'exception."

the court then stated that although the investigative agency was considered a Consumer Reporting Agency, the videotape and report contained information "solely as to the experiences between the consumer (the plaintiff) and the person making the report (the investigator)" the court said the fact that the plaintiff was unaware that the "transaction or experience" was taking place, did not remove the report and tape from the exception. The court then granted summary judgment to the defendant as to the FCRA violation only.

Of particular note is that the investigative agency obtained three other types of information during the investigation:(1) the listing of the registered owners of automobiles encountered by the investigators, (2) a criminal background check on the plaintiff, and (3) a printout from a public information database regarding the plaintiff.

The agency only provided the vehicle information to the defendant employer and since the motor vehicle information did not include information about the plaintiff consumer, by itself, it did not constitute a Consumer Report. Had the agency included the other items in their report, it would have been deemed a Consumer Report outside of the exception.

Our readers should take note that this is a very narrow exception, though it may apply to a number of investigative situations. It appears to apply to an investigator's report of surveillance of an employee, provided the report does not also contain other information about that employee, such as court records, motor vehicle records, etc. It also would appear to apply to an undercover investigation conducted in the workplace. so long as the operative only reports his first-hand experiences with other employees, it appears his report would fall under the exception.  But if, as is common in workplace investigations, the investigator reports conversation with other employees about the consumer employee, the report would fall outside of the exception and could only be permissible if all of the requisite regulations were met. this means the investigator would have had to receive a certification from the employer that the employer had advised the consumer employee of his rights under the FCRA and the written permission to order a Consumer Report, had been obtained. Further, the above example of reporting conversations with others about the employee would also be considered to be an Investigative Consumer Report that requires additional and more stringent notifications.

It should be noted that the author is neither an attorney nor a judge and the information contained herein should not be relied upon as legal advice. readers should consult their own counsel of these issues. SPECIAL NOTE: Rep. Pete sessions, R-TX, is expected to introduce legislation by March 1, 2001 which will amend the FCRA as it applies to employee misconduct investigations. Investigators will be urged to ask Congress to support this critical legislation.

FTC's "Operation Direct Pretext" Underway

Article provided by Dale Seymour printed with permission of James Brewer of Global Investigators Network

The Federal Trade Commission announced on January 31st that it has identified 175 Internet firms that offer to collect personal financial information under false pretenses and then sell it to third parties, which is a violation of federal law. The practice of obtaining customer information under false pretenses is called pretexting, hence the name. The Gramm-Leach-Bliley Act prohibits individuals from obtaining a customer's information from a financial institution or directly from the customer using false representations, fictitious documents or forgery. The FTC has sent notices to the 175 firms that they must comply with federal law and that they are being monitored. Violations o the Gramm-Leach-Bliley Act may result in civil penalties of up to $11,000 for each violation, as well as criminal penalties.

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