ABA opposes CFPB generic information collection clearance

by Ballard Spahr LLP

Earlier this month, we reported that the CFPB had proposed a new generic information collection clearance titled “Generic Clearance for Consumer Complaint and Information Collection System (Testing and Feedback).” In a comment letter responding to the proposal, the American Bankers Association urges the CFPB to withdraw, or the Office of Management and Budget (OMB) to deny, the generic clearance request.

The CFPB intends to use the information collections for which it seeks generic clearance for purposes that include permitting the CFPB to pilot new consumer complaint and inquiry intake forms, promote complaint referrals, and collect data about companies’ internal complaint management processes.

In its letter, the ABA notes that in support of its request, the CFPB stated that “the piloting of new, or testing to improve the existing complaint intake questions, may inquire about possible discrimination based on [prohibited basis factors.]“ The ABA observes that, in light of this statement, the CFPB’s request implicates “substantial policy issues, such as the method of eliciting claims of discrimination from complainants and the potential collection of monitoring information about prohibited basis characteristics to evaluate such complaints.” According to the ABA, these issues “warrant fulsome public and industry debate, not perfunctory mention and approval pursuant to the generic information clearance process.”

The ABA also notes that in support of its request, the CFPB stated that it intends to use the generic clearance process to (1) “streamline the gathering of feedback from States to develop criteria for appropriate State referral and to inform a survey of State agency functional capacity to receive referrals (e.g., operational capacity to conform to federal privacy and data security laws.),” and (2) learn more about “companies’ internal complaint management processes” through voluntary self-reporting. The ABA comments that both of these proposed collections also implicate significant policy issues that are unsuitable for a generic clearance.

In addition to discussing its concerns with the specific information sought by the CFPB’s proposed collections, the ABA criticizes the CFPB’s approach to the information collection as “dismissively cavalier.” Observing that the CFPB’s data collection and privacy practices are under increased public and Congressional scrutiny, the ABA notes that it is “inappropriate and unwise for the Bureau to treat these data under generic rather than normal clearance procedures by the [OMB]” because “[e]very complaint relies directly upon personal financial information, the privacy of which should be a major concern.”

The ABA also opposed a generic information collection clearance proposed by the CFPB in October 2011. That proposal sought generic clearance for intake forms, response forms and feedback collection used in the CFPB’s complaint system.

We agree with the ABA that the CFPB ‘s request implicates significant policy issues, which make it an inappropriate candidate for the generic clearance process.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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