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Cause of Action obtained documents showing that Scott Pluta, CFPB’s Assistant Director at the Office of Consumer Response, was working to develop a way within the agency to shield banks’ responses to consumer complaints from being released. Pluta has recently come under scrutiny from an IG and a Congressional investigation into “toxic workplace” claims. Pluta’s behavior, which received pushback from agency counsel and FOIA experts, raises questions about transparency and accountability. If CFPB in fact pursued the course of action urged by Pluta, there would be serious concerns about a violation of federal law.

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  • From: Pluta, Scott (CFPB) Sent: Wed December 07 To: Su ect:

    Would one of you like to own this as a project? Basically, we need to work with out advisors (below) on crafting some kinda policy that will give banks at least some comfort around communicating though the non-consumer facing channels of the bank portal.

    Perhaps we can craft a letter or bury something in the manual that says, for X types of communications, though this channel, those things marked as Y, or whatever, that we'll review them through the lens of FOIA Exception Z?

  • From: (CFPB) Sent: 06, 2011 9:25 PM To: Pluta, Scott (CFPB); - (CFPB); (CFPB); (CFPB) Subject: Re: consumer response "private" communications with banks

    Hi Scott,

    I agree, we are currently dealing with theory and not knowing what these "private" conversations may entail. FOIA, Privacy and OGC will look into this further and talk with DOJ too. To assist us, would you be able to provide examples of these private conversations so that we can base our guidance on something more than our interpretation of what we think is in your system.

    Additionally, who provided you guidance on these private communications? We may be able to work through - to get the information we need to provide some meaningful guidance.

    Thanks,

    -

    (CFPB); -

    I think the world of you guys but you're absolutely killing me.

    I represent the business unit. My request to my legal/compliance advisors (you all) is help in crafting a strategy that achieves a business goal that also complies with our statutory/regulatory obligations.

    Right now, what I'm being told is, point them to the text of the FOIA/Privacy Act statute and our housing keeping regs.

    I have a million other things to worry about right now so I'll table this discussion for later, but I would really appreciate if in the back of your heads you could think about how to creatively solve this puzzle.

  • Thanks -

    Scott

    From: - (CFPB) Sent: Tuesday, December 2011 4:06 PM To: Pluta, Scott (CFPB); (CFPB); (CFPB); -- (CFPB) Subject: RE: consumer response "private" communications with banks

    Scott,

    The Bureau's relevant FOIA policies and procedures for responding to requests for CRS information submitted by the banks are already set forth in the Bureau's FOIA regulations.

    In particular, 12 C.F.R. 1070.20 provides that the Bureau shall notify a business whenever the Bureau receives a FOIA request that that Bureau believes is likely to constitute a trade secret or confidential commercial information of the business submitter that is protected from disclosure by FOIA Exemption 4. The regulation states that the business shall have ten days from the date of notification to submit its objections to disclosure of the requested information by the Bureau. If the Bureau decides to disclose information over the objections of the business, it must notify the business in writing at least 1 0 days prior to doing so such that the business may, if it so chooses, seek a court order enjoining disclosure.

    I note that if the Bureau determines that Exemption 4 applies to requested information, the FOIA requires the Bureau to apply it. The Bureau does not have discretion to make a voluntary disclosure of exempt information.

    To provide comfort to the banks. we can certainly summarize the aforementioned regulations in a letter. However, I don't think that we need to draft any new internal policies or procedures. The FOIA Office already processes requests for business information in accordance with the regulations.

    Please let us know if we can help in drafting a communication to the banks or if you would like to discuss the above.

  • Consumer Financial Protection Bureau

    Confidentiality Notice: If you received this email by mistake, you should notify the sender of the mistake and delete the e-mail and any attachments. An inadvertent disclosure is not intended to waive any privileges.

    From: Pluta, Scott (CFPB) Sent: Tuesday, December 06, 2011 2:13PM ~(CFPB); ~

    (CFPB); (CFPB); .

    Subject: RE: consumer response "private" communications with banks

    Thanks -

    A few things to consumer.

    (1) I would submit that consumer complaints records are by and large fungible. That is, each record has a set universe of characteristics and sub-parts, i.e., document types. Examples include the original complaint submission, the RightNow record, audio recordings , communications from banks or consumers, etc.

    (2) The banks asked us for a channel of communication with us through which there would be come expectation of privacy (of course within the contours of the law). (3) We've been told by the banks and the prudential regulators that this is a common practice.

    Given the above we created the ability, for the banks, to communicate with the CFPB through the bank portal without that communication automatically being available to the consumer through the consumer portal.

    Now that we have this separate channel, I would like to have some kind of writ1en policy to specifically address how outside requests for the information in that channel are treated. I would like to share that policy with consumers/banks so that everyone knows the rules of the road, such that if banks feel as though they can communicate with us and have some expectation of privacy, they can do so with confidence. I understand that we cannot say that these communications are per se protected from

  • production, however, I think that we can say that communications that do pass though this channel are either presumed to fall within one of the exceptions to production, or at least that they will receive some additional level of review, etc.

    Scott

    From: (CFPB) Sent: 06, 20111:53 PM To: Pluta, Scott (CFPB); (CFPB); (CFPB); -(CFPB) Subject: RE: consumer response "private" communications with banks

    Hi Scott,

    I am not sure if a policy is needed or would be effective in this situation. CFPB has the Bureau's FOIA policy outlined in accordance with the FOIA statute in their housekeeping rules that were implemented months ago. My office has some procedures drafted and continue to build our the program's SOP to address the processing of FOIA requests. We do not have any policies or procedures for any specific CFPB offices or types of records. It would be difficult to address how we would handle complaint records because they are not going to be the same from complaint to complaint. I am not sure what you are looking for or if it is feasible.

    We implemented the attached FOIA Questionnaire to help us provide CFPB employees (eg custodians) an overview of FOIA, identify records or additional custodians, and document the search. It is our goal to use this in a majority of cases but did not for this request because the request was so specific. However, would the attach help you? If so, we can send that for all requests associated with Consumer Response.

    It is important for us to identify and collect the responsive records within 2-3 business days. Otherwise, the goal of processing the request and responsive records within the statutory 20-day timeframe may not be met and create some litigation risk for us. If I can help streamline this, please let me know. Do you know when we can expect the remainder of the documents for the most recent FOIA request (CFPB-2012-021)?

  • If I can help in anyway, please let me know.

    Thanks,

    From: Pluta, Scott (CFPB) Sent: December OS, 2011 10:43 PM To: (CFPB); (CFPB); - (CFPB) Cc: (CFPB) Subject: RE: consumer response "private" communications with banks

    To be very very clear, no one is characterizing these communications to the banks as "private." Based on advice from .. which I totally agree with, we cannot represent as much.

    An item on our collective "to do" list is a policy/procedure for handling FOIA and Privacy Act request for complaint records. To the extent possible, it should address those bank communications that aren't automatically available to the consumer via the consumer portal (what we've referred to internally as "private").

    Thx all -

    (CFPB) 2011 3:56PM

    (CFPB); Pluta, Scott (CFPB); - (CFPB) (CFPB)

    SUDlE!ct: consumer response "private" communications with banks

    Gents,

  • - suggested I send an email on the brief discussion that took place between Scott and some members of the FOINPrivacy teams after to day's training I've included -

    In short, the issue of the Bureau engaging in communications with banks about certain

    aspects of credit card complaints and characterizing them as "private" may be problematic. The example I brought up is a first-party request for "all records about my complaint. Such records seem likely to be kept in the consumer response system of records. When we have a first-party Privacy Act request for records in a system for which we've not taken exemptions, the requester is entitled to them. Whether or not FOIA exemptions might theoretically apply in such a case is irrelevant, since we wouldn't get to FOIA in our disclosure analysis when access is granted under the Privacy Act. Guaranteeing "privacy" to banks when there's an inability to keep such a promise if access is requested under the Privacy Act might have a chilling effect on banks' willingness to communicate important info to the CFPB.

    Also, though other exemptions might theoretically apply to the records in question if we decided to revise the SORN, it might make sense to consider referring to the type of communications referenced above as something other than "private.'' Even if we're assessing records originally collected for some other purpose and in turn sent to enforcement for law enforcement purposes, corporations don't have privacy in the context of (b)(7)(c) (See FCC v AT& n. Hypothetically, we could protect the privacy of the person who submitted the complaint with (b)(6) or (b)(7)(c) in these communications (i.e. Joe X submits a complaint, Bank Y communicates with us, alleging Joe X is a fraudster, we refer the matter to

    enforcemen~ etc.) upon receipt of a third-party request, but that doesn't solve our first-party access issue.

    This is just some food for thought we might want to consider when discussing the information collection itself, any public notices, MOUs/MOAs or other agreements entered into relating to this type of communication. Thanks and enjoy your weekend, all!

    Regards,

    www consumerfinance gov