This document summarizes issues regarding tenant screening reports under the Fair Credit Reporting Act. It discusses how tenant screening companies produce reports for landlords considering rental applications. These reports often include a credit check, criminal background check, and eviction records. The document outlines problems with a lack of advance access to these reports for tenants, as well as concerns about unfair exclusions and the reporting of public records. It proposes advocacy around improving access to reports and restricting the use of categorical exclusions and outdated public information.

1. Residential Tenant
Screening under the FCRA
Eric Dunn, Staff Attorney
Northwest Justice Project
401 Second Ave. S., Ste. 407
Seattle, Washington 98104
Tel. (206) 464-1519, ext. 234
EricD@nwjustice.org

2. Tenant-Screening Reports
 Consumer report designed to assist a
residential housing provider in deciding
whether to lease real property to an applicant
 Consumer report (15 USC 1681a(d))
 May be investigative report (15 USC 1681a(e))
 May contain re-sold reports (15 USC 1681e(e))

3. Tenant-Screening Report: Contents
 Reports almost always contain:
 Financial credit report (usually from “Big 3”)
 Criminal background check(s)
 Civil litigation/eviction records
 Often also contain
 Interviews with past landlords, references
 Recommendation/score/analysis

5. Tenant Screening Companies
 Tenant-screening companies are “consumer reporting
agencies” subject to FCRA
 15 USC 1681a(f)
 Must “follow reasonable procedures to assure maximum
possible accuracy of the information concerning the
individual about whom the report relates” (15 USC
1681e(b) (applies when preparing reports)
 Approx. 650 tenant-screening companies operating in
USA (per NY Times, 11/26/2006)

6. Common Problems
 Consumers lack advance access to reports
 Limits value of FCRA dispute & reinvestigation
 Timeline not practical in rental housing context
 Unfair exclusions
 Use of non-predictive information
 Categorical exclusions/rigid rental criteria
 Abuse of public records systems

7. Access to report (or lack thereof)
 Few tenant-screening companies will prepare
an original report on consumer’s request
 Tenant-screening reports ordinarily prepared
& transmitted to housing providers only
 Landlord orders report at time of application
 Screening company prepares & transmits report
(usually within hours or minutes)
 Consumer can now access report
 Meanwhile, housing provider makes rental decision

8. FCRA Consumer Disclosures
 Required disclosures: (15 USC 1681g(a))
 All information in the consumer’s file at the time of
the request (note: certain exceptions apply)
 Sources, Inquiries, credit score (15 USC 1681g(f))
 But FCRA does not impose duty to create
report at consumer’s request
 Do the unique characteristics of the rental housing
context make failure to do so an unfair practice?

9. FCRA Dispute & Reinvestigation
 Steps (15 USC 1681i):
 Consumer obtains report, lodges dispute
 CRA has 30 days to reinvestigate, report results
 Successful dispute corrects that screener’s report
 Meantime, nothing prevents the housing
provider from leasing to another applicant
 Value of correction is minimal if error is likely to
be replicated by other screening companies

10. Major Information Sources
 Other consumer reporting agencies
 “Credit” reports (Experian, Equifax, TransUnion)
 Criminal background checks (ChoicePoint, et al.)
 Correction in original corrects screening report
 Public records systems
 Law enforcement databases
 Criminal records, sex offender registries
 Court/judicial information systems
 Consumer must correct/remove public record

11. Commonly Reported Civil Litigation:
 Unlawful detainers (“evictions”)
 Bankruptcies, collection suits
 Tenant plaintiff (security deposit, repairs, etc.)
 Protection order petitions (DV, etc.)

12. “Eviction” Records
Washington’s “SCOMIS” search result screen

13. Categorical Exclusion
“It is the policy of 99 percent of our customers in
New York to flat out reject anybody with a
landlord-tenant record, no matter what the reason
is and no matter what the outcome is, because if
their dispute has escalated to going to court, an
owner will view them as a pain,” said Jake
Harrington, a founder of On-Site.com…”
--New York Times, Nov. 26, 2006

15. Public Records Systems: Concerns
 Generally created for some purpose other than
serving as a de facto consumer report
 Seldom subject to FCRA-type
completeness, accuracy, timeliness
requirements
 Often lack procedures for correcting or
removing harmful information

16. Reporting Public Records
 CRA usually follows reasonable procedures (to
assure maximum possible accuracy) if it consults the
correct public record and accurately reports contents
 But a report that omits context, favorable details may
not be of maximum possible accuracy
 “Technical accuracy” insufficient if overall effect of
report is misleading, casts consumer in false light
 CRA may have a higher duty on reinvestigation
than in preparation of initial report
 Dennis v. BEH-1, 520 F.3d 1066 (9th Cir. 2008)

17. Use of Public Records Systems
 Access to public records systems may require
users to acknowledge disclaimers, limit use
 Inconsistent CRA conduct may demonstrate that
procedures are not reasonable
 CRAs often download public records and
store the information in private databases
 Must update, refresh information periodically
 May have contractual obligations with source

19. Sealing/Correcting Public Records
 Due process may provide consumers a right to
seal or correct records in public databases
 Stigma-Plus Test: deprivation of liberty or
property occurs where:
 Government creates a “stigma” and imposes tangible
burden on person’s ability to obtain a right or status
recognized by state law; Paul v. Davis, 424 U.S. 693 (1976)
 Deprivation triggers right to notice & hearing

20. Scores/Analysis
 CRA gives recommendation or give score
 Approve, deny, or “approve with conditions”
 Basis/raw data may or may not be disclosed
 Basis for score/recommendation not always clear
 Criminal, eviction records treated more rigidly
 In practice, landlords generally defer to CRA
 Scoring/recommendation models may drive
housing provider’s rental admissions criteria

21. Here’s how our new TenantScore® makes it easy for you to make
critical decisions. First, we take credit, criminal, and eviction
information; then extract the pertinent and analyzable parts into
algorithmic formulas which tell you if your applicant is a PASS or
FAIL based upon this vital criteria:

23. Sample report from On-Site.com

24. The trouble with interviews…

25. Key Areas for Advocacy
 Improve advance access to reports
 Enable consumers to dispute inaccurate or
incomplete items before applying for housing
 NYC’s Tenant Fair Chance Act (2010)
 Curb reporting that conflicts with public policy
 UDs where tenant prevails, protection orders, etc.
 Discourage/restrict use of categorical exclusions
 Greater controls on public records
 Consumers should be able to correct, update