for today is two thousand and seventeen when i was seven three two consumer financial protection bureau vs the source for public data l may please the court my name is ron racer and i'm here on behalf of talent the source for public data i've asked for five minutes of rebuttal time and with the court's discretion your honor is we are here today because congress gave the c f p be broad power but that power is not unlimited and congress put placed reasonable limits on that power to protect against abuse in this appeal the court will decide whether to of these congressionally mandated checks on the c f p b s power are real or merely a loser and i'll quickly go through those two points for this court in summary the first is twelve u s c fifty five sixty two c two in that congress required in the notice of purpose and i would emphasize from the core the term notice because it's meant to provide notice and that notice is of two things the nature of the alleged violation that is being investigated and the specific statutory provision that gives rise alleged violation that notice needs to be sufficient and importantly it frames the consideration of eventually of a court under the morton salt factors as to whether there is a basis for jurisdiction and then i think critically and practically it frames the conversation as to reasonable relevance so in other words your honour's without there being a clear concise statement in the notice of purpose that complies with fifty five i'm sorry with a fifty five sixty two c two there is no means by which the court can engage in the analysis the second two factors of morton solved as to whether the specifications in the synod are reasonably related the second point and ask critically here this court has informed the district court it has a duty to exact its process of making sure morton salt is complied with be has to come forward with some evidence of jurisdiction once that jurisdictions have been challenged and i would submit to your honor's when you look at the two affidavits that were submitted by the c f p b which are exhibit five and exhibit the the d c circuit decided it was clear and obvious that to see if he did not have jurisdiction i would admit that this rule has to be balanced because there are instances in which the c f p being gracious yeah i mean in terms be in their notice a purpose which i guess i would argue provides no notice at all includes the acts of any person that might be unlawful or or an unlawful practice or procedure for any of the fourteen and numer d statutes that congress gave the c f e be authority to regulate that could be thousands upon thousands of possible violations certainly a public data has no means to be able to determine why the c f e be could be arguing jurisdiction but i think again when you look at more and saw you look at the role of the court that the inadequacy of this notice of purpose is highlighted by the fact that morton sol factors cannot be applied with this notice of purpose it's just simply too different from the jurisdiction of the agency which would be found i guess in the general statement she has in writing is reasonably that any person in possession  should i think the typical are related to one another neuron so so what i would concede to see if he is not required in the first instance to prove that they have jurisdiction specifically over my client i realize that there were some arguments made in the lower court in some briefing that may have created the perception that that was the argument but in fact that was not the purpose of why we presented the evidence from the declaration of mr stringfellow as well as a decision from the eastern district of texas in the wilson matter finding  so i think relative to that it's important that this core reaffirm what for what reason specifically for two reasons one is that the notice of purpose did not meet the requirements under fifty five sixty two c two and we could stop there affidavit explaining their basis for a jurisdiction or at a minimum explaining the minimal amount of work that would have been taken to determine whether in fact they needed this see id in order to determine if the agency had jurisdiction or not they simply simply did not meet th t b be given the message that the that the statement that the notice of purpose written in such broad terms is not sufficient that the c f e be should write the notice of purpose in a way that makes it a bit you know within the requirements and mandates of fifty you don't really know where i suppose one of these notification or purpose is for this to investigate you or your clocks is it correct that's correct you're all right and then there's no question that you have business or do business with my clients business makes public record information available online it uses a right i mean you have i mean you would assume that you have many many com we do your honor and a lot of them are individuals like you or myself who want to be able to get access to public records without having to stand in long lines or without having to navigate sometimes a difficult bureaucracy of a recorders or a clerks or a d m v and i they haven't been willing to answer that question and i pose it on numerous occasions including in the meet and confer process relative to the c id that was issued to my client i think it's quite remarkable that they criticize us for not negotiating on the scope of the request within the said so that so the base of the iraq the tories but we certainly could not just like the court couldn't do its analysis under morton salt because we didn't know what the scope or the purpose or the target or a lot of the but i would say it's two things your honor so one is it doesn't identify the unlawful practice right so if you if you compare that to a lot of the other notice of purpose and other the considered by this court and other cour it's a lot more specific you have some idea as to what the investigation is about here it's just talking about an awful acts the other problem that i have is that it doesn't limit itself to any one particular law it says any law that to see if he has the ability to enforce with enough information as to their basis for jurisdiction which would then also enable us to have a conversation with the c f e b as to whether their specifications are reasonable in scope are they reasonably relevant which is the sector second factor under  also for us to be able to determine whether this is unduly burdensome i think it's where the target of the investigation may be the burden analysis is different than if we're just a third party providing information to enable to see if even to do investigate whether a target of the investigation i'm sorry romney will not tell you whether you are a target of the investigation they have not your honor the closest they tell me is that is in the brief to this court where they seem to fluctuate back and forth between saying that we might be and that we aren't or it doesn't matter i own a fishing expedition i guess and they don't know what they're going to find and then they find something they can prosecute you for george that may be their purpose your honor i don't think the fifty five sixty two c two permits them to do that i think likewise under say the court instruct this court has instructed this the district courts if they play an important role in preventing an agency from doing exactly that in gauging in a fishing expedition they have to come forward with an affidavit and again i think if you to make the attempt to say they did anything to investigate whether they actually have jurisdiction or they need information from public data so either complete investigation open investigation whether it be as the public data or any other entity we're left guessing so they just run around serving these from everybody so they were at one point time i think going to the former director there were a number of my clients that were getting these types of c i d s with very broad notice of purposes the the agency i think was using that as a vehicle remains to do some investigation and learn what the industry how the industry worked i would tell you that i normally represent consumer reporting agencies as well as companies that will admit that they provide information to consumer reporting agencies to be incorporated into consumer reports that's a very different circumstance than my client today public data which is really and simply trying to provide a service to the public to allow access to public records which i think is important part of being able to protect our rights under the constitution or one of three or is there a particular class of violations that they are specifically pursued or you have to ask to see if t v they act as if you know they haven't shared with me the the details of with respect to this particular city id i just generally don't i mean generally i'm only generally i'm only aware of one case to see  admits that it's a consumer reporting agency it provides information to pretend employers perspective employers which falls within the definition of consumer report what they see if he did he said that g i s failed to do was employed reason procedures to assure maximum possible accuracy so in other words in the information that g i s was providing to prospective employers the see on t v said you didn't go far enough to make sure that information was accurate before you turned it over  different from the consumer reporting agency in that it takes public record information from you know courts recorders offices and any any any place that allows for public access to those records it doesn't change those records at all it sets them up in a database and allows you know a user near me or you to come in and search with very general search terms and find a record that common  question the opposing brief says several times that you're only appealing relevance that you just argued and duly burdensome to us are you you're appealing the entire  performed is that correct i'm not actually arguing the second or the third factor what i'm saying is without being adequately to without being able to adequately address the first factor and without the c a t v providing the specificity under fifty five sixty t that messes up the entirety of the analysis exactly so that when they say you're only saying it's not relevant that's not exactly accurate so we're great we didn't we didn't argue relevancy and in fact in the lower court when i iran articulated which i hope to convey to you which is you know without the c a t d meeting the requirements of fifty five sixty two c two it's impossible to determine the scope of the authority the basis upon which to see if the da is saying it is investigating my client to then in turn have the discussion about reasonable relevance thank you september about  requires that each c ideas should by the bureau must set forth the nature of the conduct constituting the alleged violation under investigation and the provisions of law political to such violation see id here sent to public data describe investigation into whether consumer reporting agencies persons using consumer reports or others were violating the f c r a or its implementing regulation reg in the way they used or provided public records information id therefore describe the nature of the conduct and the provisions of law at issue here and in doing so it provided enough information for public data and for the district court to apply the mor requests for information those requests for information are focused on public data as business and are focused on what data does nothing is understand but furnish governmental information that's available to what are they been looking for what you want to know well that's the that's their description of their business but those are exactly some of the facts that the c idea of what do you want to know we want to know whether consumer porting agencies  sure well if it's if you don't have to if you had don't believe you have to answer my question i'm not going to force you to answer my question but isn't it relevant to know of their target whether in order to determine if certain things are relevant or unduly burdensome a target would have to do more than some random person who might have something you know in their stack of three million documents or more isn't that true that  all of that morton salt depends on knowing enough information your honor it's it is clear i think from the sea i do that as a whole not just an educational purpose that the bureau is seeking to gather information about public data and whether it is in fact operating as a consumer porting agency there's not really any confusion i think about that fact public data has been the subject of a number of private lawsuits alleging a in providing these these records for use in the employment decision so consumers have this is about going after them to see if they are acting as a as a reporting agency against their stated test and evaluate the subpoenas and possibility to raise you know relevance or burden objections but they really haven't explained why this information they're asking for would be necessary to it's not required by the actual if it has the same an informative catch that was in the case in the d c circuit why doesn't that on its face make it inappropriate that catchall needs to just speed to the district court have the power drill delete that out or are not how does that work i think it's possible the district court would have that power twelve u s c fifty five sixty four age which gave the district court jurisdiction to hear this the result of this petition allows the district court to enter any order necessary to carry out the purpose of the provision language along those lines it's possible that it could have they say with respect to the d c circuit decision the d c circuit did not find any fault with that similar language any other consumer financial protection law the d c circuit instead at the very end of its opinion said this uninformed of language does nothing to cure to cure the defects  know for sure at the outset of an investigation what violations of law he might uncover or by whom i think a fair reading of this notification of purpose especially when you look at the request for information and see id is that the investigation is focused on the use or provision of public records information in violation of the of c r a or regs and that that specific language doesn't disappear just because there's this could relate to consumer finances that it's somehow in our federal law which one that's well we'll know even and even under public data is incorrect argument this this would be limited to the specific laws that the that the bureau you know go through the process of reassuring and you see i did go through a ministry a process and you know it's i this court has emphasized that subpoena enforcement proceedings are meant to be summary in nature they generally specific modifications to any of the requests for information and see what is happening in these negotiations are conferences that you have had with the defendant here aren't part of the nature of the conversations i mean if they've been compromised settlement discussion about identifying the documents in them no discussion about about settling actually substantive claims your honor because the c idea of course is not a complaint the bureau is mentioned in his in his argument that they set forth and in some detail what was discussed at these meetings first they were extremely brief and essentially what happened was public data came in and said we're not covered our violating the up c r a so this see id can't be enforced and that's really been the focus of their argument throughout this this proceeding at least until today has been on this idea that an agency is still gathering evidence you generally generally speaking do you operate on the basis of substance compliance and you got enough complaints against one particular business then your investigation is tri generate consumer complaints and certain types don't so something that makes violations of the f c c are a particularly pernicious in some cases is that a consumer may have no idea that the of c r a has been violated so  will lose their job because incorrect information was provided about them by by a consumer porting agency they may have had no idea that that happened and they would have no cause to it to file a complaint have i suppose the bureau could but that last actions do we engage in class actions no i don't think that would be possible and we don't we do of course like any other agency have limited first met resources and we seek to has been violent along the statutory standard and this is in fifty five sixty two c one is that there can only issue a c id when it has reason to believe that the recipient may be in possession of information relevant to a violation of the laws the bureau of course and i have would probably need to give them each two more minutes because i have several questions about that if if they were truly a third party and you knew that going in and you didn't even think that they were the ones violating you would still be able to get whatever papers you want from them under your reading of this right if if you were accusing them of being a vi mean you could you could still get the same information from them or you think this would be different i think well i think it's likely that the bureau would be asking for different information in that in that case it was hard to describe hypothetically but i was fifty five sixty to see to this this notification purpose requirement we've been discussing applies equally to third party subpoenas and ok first party would use some other side of in ministry of subpoena to see id you would use this even when it's true third party and any even if you didn't have quote jurisdiction over them because they weren't subject to your  them and i would say that the fact that this notation purpose requirement applies equally to third party and first party subpoena is really helps to i think underscore two two points first it morton salt and determining whether whether it needs to comply that recipient doesn't have a valid interest in sort of whatever additional information about a confidential on horsman investigation they might claim to want or about a not in a you know other details of an investigation into another entity and that the second point that underscores is that not just the bureau but regulated entities actually and he's under investigation  couldn't you know actually come to regret a rule that required additional details be set forth about an investigation in a third party subpoena so hypothetically a c id is sent to a company's bank that said we are investigating this company identifying them by name for these specific violations could have a number of practical  and legal consequences for for the end of the under investigation the peg i'm just thinking to answer that question but i look at this case does not in any way involve any of the issues related to the legitimacy of other question has to do with  when is the proper time that a person is it only when it reaches the enforcement stage or when is the proper time where you say look see if p p you do not have jurisdiction over us that only whenever the enforcement action is brought so they can continue to get all the all the documents for years or however long and keep going back to the well but they can never challenge that they for that basis that a contrary rule would allow the ideal recipient to stop an investigation into whether the law has been violated by just them is that the answer and your time is up so is that true that you can keep going back to the well without ever you your honor as i think to see if he wants to leave it as well so they want to use a very broad statement on jurisdiction in the notice of purpose so that makes it difficult to argue they don't have jurisdiction but then they want us to fill and then they want to force the recipient of the c id to somehow on the go she limitations of the specifications in that c ideally based on a vegan nondescript notice of purpose well but if you knew that it was that you in fact are some target that they think you actually are a fair credit reporting bureaus subject to that law even though you're you say you're not and you knew that they were not expanding that other clause beyond  beyond it modifying the statutes that and regulations are already at mit already in there then why wouldn't that be narrow enough but we didn't know that you know until today ok we didn't know that this c idea was based on complaints that have been filed in the core and fact in the meeting confer process it didn't last very long because we asked the see if he'd be staff to explain what their basis was for jurisdiction in the course of that conversation we pointed to the fact that in the litigation that has gone to a decision from the court my client actually prevailed that summary judgment and that court in the eastern district of texas found it based on facts that were submitted to that court  think it's important to recognize the congress and acted fifty five sixty two c two just for this purpose because the c f p b has such broad regulatory authority fourteen different statutes regulating from debt collection to loans needs to do is reference some statute that it may have authority under and that's alone and sufficient to allow them to use their broad powers to issue a c id in burden of business fifty five sixty two c two was an act of specifically for this reason to make sure that there is accountability at the c f p be and that recipients of c i d s learned the conduct constituting the alleged violation we didn't get that here it's unlawful acts or practices that could implicate any of the fourteen consumer financial protection statutes of the see if he has the authority to regulate over that to me that's not sufficient notice to for the recipient to be able to understand you know why they see id is not sufficient notice to be able to determine whether jurisdiction is proper under that recipient or certainly it's not enough to be able to negotiate reasonable relevance and certainly to perform the the second the third factors under morton salt that the district court was required to perform i don't know how the court could have performed that without understanding what the basis was for the suit for the good for the c i the in the in the statement within the notice of purpose as presented by the c of p b s and i think it's important to realize that that needs to be proper out of the gate in the see if he be you know i think needs the message sent to them that they need to comply with fifty five sixty two see to that this is not just simply a matter of form over substance  a practical purpose and there is an implication to enabling that if we enable the c f p be to continue doing nor fifty five sixty two c i will also note i did mention that we have in the meeting confer that's what we raise and raise this issue of how can we negotiate a limitation if we don't know the proper scope and purpose and that your notice of purpose was insufficient i think likewise that c f p be failed to meet its burden under  so they could have in the district court submitted an affidavit that said public data were investigating you and we think that you're a consumer reporting agency and we think that our specifications relate to our investigation to determine where the you are one or not look at those two affidavits they don't mention anything about jurisdiction they don't mention anything about an investigation or even a policeman area investigation to determine whether the c f e b has a basis and i think about that your honor as we have a decision from an eastern district court of texas a summary judgment decision the court looked at the facts and determined that public data was not a consumer reporting agency so we have to ask the question did the c f e be ever even go on public data as website cover fourteen different statutes what we're asking for is that the c f p be comply with fifty five sixty two c two and provide a level of specificity that enables the recipient of a c id to be able to go through