good morning may please the court my name is steven woodrow and i represent the plaintiff appellant daniel walker if i could i'd like to reserve a few minutes for rebuttal your honour's in violation of the fair credit reporting act specifically its requirement that employers give applicants and employees a standalone disclosure prior to conducting employee background checks fred meyer's record disclosure form is riddled with extraneous information furthermore fred meyer's adverse action process is illusory and denies employees the ability to explain is my st point contrary to the position taken in fred meyer sir reply that everything in the disclosure should be considered the disclosure itself the simple truth is that the disclosure form contains no fewer than five extraneous items st the disclosure combines the disclosures for consumer reports with the disclosures required for investigative consumer reports this i don't understand in the sense that and my understanding is an investigative consumer report is a subcategory of consumer reports is not wrong your hon the statute says that investigative consumer reports are a type of consumer report but i guess defined them separately and separates parts of the status but it's just and it's a little person who doesn't know anything about this then investigative consumer report is also covered then they might not think it is right but it is cover your honor i would think that they were less clear than they need to be congress made very clear that these two types of disclosures need to be provided separately consumer report disclosures are governed by section one thousand six hundred and eighty one b b two must be provided before a report is requested congress in a different part of the statute eighty one da said investigative consumer report disclosures are government separately and they can be provided up to three days after the investigative consumer reports the school is or is ordered and so they're going to have that there's going to be an investigative consumer report or what i thought was it's included within the notice that you can you can doing consumer reports now no your honor congress plainly intended for these two disclosures to be made separately of course cut the legislature could have combined these two types of somebody who agrees to have a concern has to be agreed to have a consumer report but doesn't have to agree to have an investigative consumer report even though an investigator consumer report is likely to be more and intrusive and more likely to be  they need to they need to be provided certain disclosures under the statute but and that follows is an agreement is an acquiescence right yes they need to authorize acquiescent having investigated consumer reports they do but that that authorization can potentially be combined but the disclosure can't be combined the disclosures have to be separate it sends a different message to the applicant or employee that a consumer report a background check is going to be done on them then the message that we are going to be looking at your references your work history and confusingly any other information with public or private information sources i mean that gets into some other information but as to the st sentence that says one or more consumer reports or investigative consumer reports are you saying that's a problem that is a problem given the rest of the disclosure that goes on to describe the nature and scope of the investigative consumer report you're our congress couldn't have been clear and this court said the same in its recent gilbert decision that these soli mean soli and nothing else is supposed to go into the consumer report yesterday because it's a question of what is included in their requirement that they inform people that they're going to have consumer reports right or is it include the requirement that you inform people that you going to have an investigative consumer report and the answer is no charge and we know that because congress doesn't know therefore doesn't have to be in an agreement to that either in advance not disclosure and that disclosure can be provided up to three days after the rip the investigative consumer here is a way to read the statute though because why would congress be so concerned with people having to acquiesce in somebody looking at their credit history but not  acquiescing to somebody going around talking to their neighbors and interviewing them there are many but you write a statute that way the authorization can apply to both and if this court wants to read the statute as applying the authorization to both that's fine but the disclosures themselves must be made separately and the young asking us to read the statute as if the statute is really stupid not at all and i understand that sometimes congress passes statutes that have the consequence of being stupid i won't say congress is divided as online as we have to do but statute this one seems to be the reading you're proposing seems really stupid that is to say if the purpose is to warn someone that they're going to be some reports or report prepared to which you might have an objection and we want to have an authorization before hand and then we want the authorization to be based upon a very clear statement of what's going on that's exactly what this st paragraph does your honor the rest of the rip of the disclosure contains more about the nature and scope of the investigative consumer reports so much so that it overwhelms the consumer report disclosure the purpose of this law you need to prevail on this particular statutory interpretation issue to prevail and your point is since more i mean it seems to me that you still have sources it indicates that a consumer can inspect yes his files bring a friend so long as the friend brings the proper id the g i s will provide trained personnel to decipher any codes that are in the report that all goes well above what congress said the purpose of the statute is to protect privacy rights by providing applicants and employees with a clear simple disclosure of red myers goes well beyond that i understand it goes well beyond once but as i read both paragraphs four dollars and five dollars that explain human inspect the files don't i don't know those paragraphs are designed to be helpful to the person who signing your honor it's it's not necessarily that those paragraphs are helpful those paragraphs could lead someone to believe that it's part of the investigative consumer report disclosure also the gillberg court rejected that to the other problem i'm trying to find out whether if we disagree with you about whether the investigative consumer report disclosure as part of the disclosure this is still surplusage it is surplusage your honor like i said there are five ways that there are five things that are extraneous to the consumer reports of slaughter the combining of consumer report disclosure investigative consumer reports closures into a single documents but one all of this information detracts from the the point of the statute which is to let people know that a consumer report for employment purposes is going to be obtained the gillber court itself said that even helpful information could confuse consumers and that purpose if it's of purpose is to help doesn't override the plain meeting soley mean soli they're not supposed to put anything else in these disclosures and they do your hon to protest to is there i was struck by the fact that neither brief actually deals with the statute well there's nothing in the statute that says that is that correct your honor i believe it used to be in the statute and what the case  disclosure is proper because it goes along with the purpose of the statute to provide the consumer enough information to be able to determine whether or not they want to authorize that's not what the statute says and that's not what gilbert says  gillberg had in its entirety they assess the disclosure and in that disclosure they actually reference not only the investigative consumer report combination but they also reference the consumer's right to seek a copy of the report and discuss the report in the cording gillberg at least implicitly do not take issue with that information in the disclosure and our position is that our disclosure is a understandable five paragraph disclosure that provides the consumer with enough information to be able to properly authorize the whether or not they want fred meyer to obtain their personal information otherwise we're reading a simple statement that just says a consumer report from planet purposes that does not provide enough information for a consumer most consumers do not even know they are consumer or that what a consumer report it and our position is if we have that sort of limited version it would render the authorization essential meaningless and be unclear because it's not understandable as far as the investigative consumer report and the consumer report combination our position is that it is more clear and concise to have the disclosure that information in one disclosure saying that we could do this we're not saying we will do it for sure but we could get this information in the investigative consumer report is a sub part if the definition is actually a consumer report or portion thereof only obtained via interviews and so we're giving the consumer information to be able to determine do i want to be able to release this information your argument really is  argument yes your honor we're not asking the court to overturn gilbert or siad what we're asking the court to do is to determine what is a permissible disclosure it because that term is ambiguous as it's not defined and clearly with all the case form is not a standalone document your honor we would submit that it is this is a just a standalone docket because this contains what should be a disclosure by looking at statutes purpose which is to protect consumers privacy rights to ensure the accuracy of reporting and the efficiency of correcting errors and we submit that this should be considered a disclosure under the act which would be of sandal and document the problem is that the statute says what the disclosure supposed to be you say it doesn't but if drugs that's closure that a consumer report may be obtained for employment purposes and i would seems to me that it's arguable that the information that you provide as to what a consumer report is may come with that but the information about dealing with g i s and so on has nothing to do with it has something to do with it but it's not that it's something else your honor and i understand what you're saying our position now is that as soon as we start adding in any layers on top of that one statement that it could be obtained from plymouth purposes that a consumer report that we're starting to add more information in our position is that the information that we're it doesn't just say just closures has just closure that a consumer report may be done that's just closure so if we do know what the disclosure is it's not a mystery and our position is that adding in the information that we have the problem is that there's there is retroactive liability and that's a problem i mean you wouldn't care if you just left off those paragraphs and that's why his post i thought the purpose was to again give as much information to the consumer i mean all that is doing it is helpful and especially the if paragraph on the end is talking about if we do this then you have this right to disclose it we combined them i mean practically what that's not in disclosure and you have another page in which there have to either agree or not agree to do this so that could be confusing because you they may think they mean it understand what the purpose  disclosure otherwise then it could be his word or her word against ours that they didn't actually receive and so this is simply just making sure that we have covered his receipt of it as far as the pre adverse action issue if i could address there is nothing in the statute that mandates what mr walker is requiring or asking of the court the history of this is there there is a provision with regard to certain employees that says specifically the vice letters from the f t c suggested that and i'm ninety seven or something says that that provision seems to think that provision used to apply to everybody is that accurate you  consumer report needs to revive two things a copy of the consumer report and a summary of rights which is issued by the f t c there's no dispute here that we've done that is far as the history i mean it was to promote privacy and to protect the consumers accuracy of reporting and so we have done what is required of the statute and mr walker is asking us to read into another mandate that just simply not required as i understand the argument made by your adversary in order to comply with the statutory requirements you've got to give two different forms one of them beforehand consumer reports and the other one no later than three days honor mr walker already takes issue with us providing several pieces of paper for on board and this will just be another piece of paper that essentially says the main thing but my understanding with respect to the consumer investigative report is that you have to have to disclose it either before or three days after and then you have to upon the consumer asking for the nature and scope of the interviews then you have to provide those i think that's within five days i see that my time is up thank you very think your honour's just two quick points on rebuttal st i checked the statute six hundred and eighty one da the investigative consumer report disclosure provision does not require an authorization is it stupid perhaps but it's the law provision than it's most right an execution the law's the law and it's not the court's job to revise what congress has said so while it might not make the most sense that one would need to authorize a consumer report but not an investigative consumer report that was left to the judgment of the legislature congress said these two types of reports must be disclosed separately and fred meyer wants an implied exception to allow for helpful information gilbert says no there's no allowance for that the document doesn't stand alone fred meyer reads disclosure too broadly so that anything helpful or arguably helpful or arguable or arguably related is ok congress disagreed it is a straightforward and simple statute to comply with i unclear why businesses seem to have such trouble with it maybe its clarity is is too overwhelming but the point is that this statute specifies what needs to be disclosed and it must stand alone and this does not think i think