Secretary of State
A consumer reporting agency or a credit reporting business that is exempt from licensure requirements as a private detective business under O.C.G.A. § 43-38-14(a)(2) nevertheless must obtain a license from the Georgia Board of Private Detective and Security Agencies to perform private detective business activities as defined in O.C.G.A. § 43-38-3(3) that do not fall within the scope of this exemption or some other exemption.
Your predecessor in office asked whether a consumer reporting agency or a credit reporting business that is providing services that fall within the definition of private detective business but not within the purview of the Fair Credit Reporting Act (hereinafter “the FCRA”) must be licensed as a private detective agency by the Georgia Board of Private Detective and Security Agencies (hereinafter “the Board”).
“Private detective business” is defined in O.C.G.A. § 43-38-3(3) as
the business of obtaining or furnishing, or accepting employment to obtain or to furnish, information with reference to:
(A) Crimes or wrongs done or threatened against the United States of America or any state or territory thereof;
(B) The background, identity, habits, conduct, business, employment, occupation, assets, honesty, integrity, credibility, knowledge, trustworthiness, efficiency, loyalty, activity, movement, whereabouts, affiliations, associations, transactions, acts, reputation, or character of any person;
(C) The location, disposition, or recovery of lost or stolen property; (D) The cause or responsibility for fires, libels, losses, accidents, damage, or injury to persons or property;
(E) The securing of evidence in the course of the private detective business to be used before any court, board, officer, or investigating committee; or
(F) The protection of individuals from serious bodily harm or death.
A person engaged in any of these activities is engaged in the “private detective business” and must be licensed. O.C.G.A. § 43-38-16. However, insofar as the FCRA is concerned, there is an exception in O.C.G.A. § 43-38-14(a)(2) for “a person engaged in the business of furnishing information in connection with credit or marketing and a person or firm engaged as a consumer reporting agency, as defined by the federal Fair Credit Reporting Act.” (Emphasis added.) Consequently, a person engaged in the “business of furnishing information in connection with credit or marketing” or a person or firm engaged as a “consumer reporting agency as defined by the federal Fair Credit Reporting Act” is not required to be licensed to engage in these activities under the Act.1 This is not to say that such a person or entity is not required to acquire a private detective agency license if engaged in other businesses unrelated to those referenced in the exemption above; rather, the extent of the exemption under O.C.G.A. § 43-38-14(a)(2) requires an analysis of the FCRA.
Under the FCRA, a “consumer reporting agency” is “any person which, for monetary fees, dues, or on a cooperative nonprofit basis, regularly engages in whole or in part in the practice of assembling or evaluating consumer credit information or other information on consumers for the purpose of furnishing consumer reports to third parties, and which uses any means or facility of interstate commerce for the purpose of preparing or furnishing consumer reports.” 15 U.S.C. § 1681a(f). In turn, a “consumer report” is “any written, oral, or other communication of any information by a consumer reporting agency bearing on a consumer's credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living which is used or expected to be used or collected in whole or in part for the purpose of serving as a factor in establishing the consumer's eligibility for (a) credit or insurance to be used for personal, family or household purposes; (b) employment purposes; (c) any other purposes authorized under section 1681b of this title. 15 U.S.C. § 1681a(d)(1).
The authorized purposes for which a consumer report may be furnished under Section 1681b must relate to the following circumstances and no other, and must be to provide a consumer report to a person which it has reason to believe
(A) intends to use the information in connection with credit transaction involving the consumer on whom the information is to be furnished and involving the extension of credit to, or review or collection of an account of, the consumer; or
(B) intends to use the information for employment purposes; or
(C) intends to use the information in connection with the underwriting of insurance involving the consumer; or
(D) intends to use the information in connection with the determination of the consumer's eligibility for a license or other benefit granted by a governmental instrumentality required by law to consider an applicant's financial responsibility or status; or
(E) intends to use the information, as a potential investor or servicer, or current issuer, in connection with a valuation of, or an assessment of the credit or prepayment risks associated with, an existing credit obligation; or
(F) otherwise has a legitimate business need for the information (i) in connection with a business transaction that was initiated by the consumer, or (ii) to review an account to determine whether the consumer continues to meet the terms of the account.
15 U.S.C. § 1681b(3). In light of the foregoing, the Board does not have the authority to require licensure for credit reporting businesses and consumer reporting agencies whose activities fall under the scope of the Fair Credit Report Act as described above. Ordinarily, consumer reporting agencies may be expected to deal with matters relating to credit transactions, employment, insurance, and financial matters relating to licensure.
However, it is possible that certain entities that act as credit reporting businesses or consumer reporting agencies may provide services that fall outside the scope of activities covered by the FCRA and within the list of activities referenced in the definition of “private detective business” in O.C.G.A. § 43-38-3(3). In those instances, the Board has the authority to regulate the collection and transfer of consumer information that is not provided in connection with such things as extending credit, providing insurance, or for employment purposes.
Therefore, it is my official opinion that a consumer reporting agency or a credit reporting business that is exempt from licensure requirements as a private detective business under O.C.G.A. § 43-38-14(a)(2) nevertheless must obtain a license from the Georgia Board of Private Detective and Security Agencies to perform private detective business activities as defined in O.C.G.A. § 43-38-3(3) that do not fall within the scope of this exemption or any other exemption. Whether the Board has authority in any specific case will depend upon a thorough consideration all of the details of the activity and circumstances sought to be regulated.
Assistant Attorney General
1 Though it is not clear, O.C.G.A. § 43 38 14(a)(2) may create two exemptions, one for a person engaged in the business of furnishing information in connection with credit or marketing, and a separate exemption for a person or firm engaged as a consumer reporting agency as defined by the federal Fair Credit Reporting Act.