Trump Administration Has a Big Thing Against Public Databases

U.S. Treasury, Mirroring Industry Complaints, Proposes Curbing CFPB

“One of the most frequent criticisms of the database is that, because it does not verify complaints or provide sufficient context regarding the related market and industry practices, it subjects companies to unwarranted reputational risk,” the Treasury report stated.

As the Treasury noted, it was the Dodd-Frank Act—the financial reform bill Trump has pledged to “dismantle”—that required the CFPB to create a publicly accessible database. On June 8, the House passed a bill, called the Financial Choice Act, that would prevent the CFPB from publicly posting the complaint database while also undoing many of the reforms that followed the financial crisis.

A CFPB spokesman, Sam Gilford, said the agency is reviewing the Treasury report. In a speech on May 31, CFPB Director Richard Cordray said the database helps the agency identify patterns and prioritize problems in the marketplace.

“By sharing this data publicly, we empower consumers and inform our state and local partners about issues affecting their constituents,” Cordray said. “Likewise, companies have begun to use the data to improve their own operations, their compliance efforts, and their customer service.”

‘A Deterrent Against Misconduct’

Ruth Susswein, deputy director of national priorities at Consumer Action, said public access to the CFPB database can serve as a deterrent against misconduct while also giving consumers a valuable tool to help them shop for financial products and, later, to see if others experience any similar issues. With the addition of the narratives, she said, the database grew to include the “meat of the complaints.”

“The opportunity to publicly report a problem empowers consumers,” Susswein said. “If you’ve got a problem with a company, gone back to them and still not resolved the issue, you have an avenue here.”

Another database may never see the light of day. The U.S. Labor Department’s Occupational Safety and Health Administration last month suspended an Obama-era rule requiring companies to electronically report their injury and illness records so that they could be made available to the public.

The rule, finalized in the last year of the Obama administration, had already drawn a court challenge from companies and industry groups, including the National Association of Manufacturers and Associated Builders and Contractors Inc.

Their complaint, filed in Dallas federal district court, alleged that the “intent of the rule is to allow employers’ confidential and proprietary information to be misused and misinterpreted by the public and special interest groups, thereby exposing businesses to significant reputational harm and loss of goodwill.”

Linda Kelly, general counsel to the National Association for Manufacturers, said the rule was part of a “trend of regulations that tried to motivate through name-and-shame.”

As another example, she pointed to a U.S. Securities and Exchange Commission rule requiring companies to report the pay gap between chief executives and rank-and-file employees. In February, after rising to the role of acting SEC chairman, Michael Piwowar directed staff to “reconsideration the implementation” of the pay ratio rule, citing industry concerns about complying with the reporting requirements.

With the OSHA rule, Kelly said, the concern was having “raw data being put up online for public consumption.”

“And the data could be misconstrued, there could be problems with accuracy. It could be used for purposes other than trying to improve safety in the workplace. We thought that approach was just counterproductive,” Kelly said.

Companies Complain About Cost

At one agency, the complaint database has so far been immune from the Trump administration’s scrutiny: the Consumer Product Safety Commission.

Before it went live in 2011, the commission’s online database faced resistance from industry groups that feared it would be filled with false claims. A month before the database was set to launch, the U.S. House passed a spending bill with a measure pushed by then-Rep. Mike Pompeo, now Trump’s CIA director, to prevent the CPSC from implementing the complaint system.

“This will drive jobs overseas,” Pompeo said during floor debate on his amendment, the Washington Post reported. “It will increase the cost for manufacturers and consumers.”

A CPSC spokeswoman, Patty Davis, said the commission was not aware of any pending efforts to reform the Saferproducts.gov database. The commission receives about 5,000 complaints a year, a small fraction of what the CFPB collects and posts on its own database.

In 2014, a company sued under a pseudonym to prevent a report naming its product from appearing on the CPSC database. A federal district court agreed to keep the company’s name under seal, but the U.S. Court of Appeals for the Fourth Circuit reversed that decision, ruling that reputational harm was not enough to justify concealing court records. Ergobaby was revealed as the company that sued as “Company Doe.”

“The whole point of the database was about transparency and keeping the name of the company and the product under wraps was something the court was very much adamant about not being appropriate. That case was a clear line in the sand for companies that wanted to try to limit information in that way. And we’ve not seen another case since,” Rachel Weintraub, general counsel to the Consumer Federation of America, told the NLJ this week.

The development of government-maintained databases coincided with the rise of sites such as Yelp and Amazon.com, where the idea of giving consumers a platform to provide information about products and services became widely accepted. “There really was a sense that more information like this would really change, even revolutionize, the way people make decisions,” Weintraub said.

For now, the Treasury Department’s report gives only a recommendation to block public access to the CFPB’s complaint database. It could eventually take legislation or a policy shift from new leadership for the CFPB to take up the Treasury Department’s vision for the database.

“The arguments against transparency have been made across the board,” Weintraub said. “And because of the type of technology that exists now, I think consumers really expect a different level of transparency from companies as well as from the government.”