Recently, the American Civil Liberties Union commented on the Consumer Financial Protection Bureau’s proposed amendments to its rule governing the disclosure of records and information. While the ACLU expressed its appreciation for “the importance of the Bureau’s investigative work,” the ACLU asserted that the CFPB’s proposal “presents serious First Amendment problems.”
More specifically, in its Oct. 20, 2016, comment letter to the CFPB, the ACLU maintains that certain proposed amendments would operate as “a prior restraint on speech” for recipients of civil investigative demands (CIDs) or “notice and opportunity to respond and advise” (NORA) letters from the CFPB. According to the ACLU, recipients of CIDs or NORA letters would be restrained—at least initially—from voluntarily disclosing either the receipt or the content of the CIDs or NORA letters in violation of the First Amendment.
In August 2016, the CFPB proposed amendments to the procedures used by the public to obtain information from the Bureau under the Freedom of Information Act, under the Privacy Act of 1974, and in legal proceedings. In addition, the CFPB proposed modifications to its rule covering the confidential treatment of information obtained from persons in connection with the exercise of its authorities under federal consumer financial law.
Thorny problems. While commending the CFPB for its investigative work, “particularly in the area of Equal Credit Opportunity Act enforcement,” the comment letter underscores the ACLU’s concerns about the proposal’s restrictions on free speech. Among other things, in urging the CFPB to reconsider its proposal, the letter notes that:
- the ACLU understands and agrees with the CFPB’s restrictions on its own disclosure of CID and NORA information;
- while a CID or NORA letter recipient would be allowed to disclose certain information to specified individuals under specified circumstances, the disclosure to others, however, would only be permitted “with the prior written approval of the [CFPB’s] Associate Director for Supervision, Enforcement, and Fair Lending;”
- this “prior written approval” requirement imposes a prior restraint on speech for those CID and NORA letter recipients who prefer not to remain silent and instead wish to disclose information about the receipt or the content of these CFPB requests;
- other federal regulatory agencies do not use this type of “gag rule;” and
- it is inconsistent for the CFPB to post petitions to set aside CIDs on the Bureau’s website for “transparency” purposes while simultaneously prohibiting a party from posting information on its own website about a CID it has received from the CFPB.
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