*1 noted, judgment. The the intense district court found no rea- previously ground. As racing industry justi- is grant declaratory injunctive son to re- regulation of the wagering public of lief. We find no abuse of If fied because discretion. Substance abuse races. outcome of comply the Commission ceases to with the most visible human are the jockeys, who rules, proposed confidentiality jockeys sport, public could affect in the participants may return to court with a new lawsuit. integrity sport. of that in the confidence contentions, privacy Their in the circum- appearance in the state’s interest While the case, ripe adjudi- stances of this are not participants, it is integrity reaches all cation. respect jockeys. obviously greatest with principle governing equal protection is The Conclusion rationally step take one may the state proffered conclude that none We See, e.g., v. Lee at a time. Williamson grounds for reversal of the district court’s 483, 489, Inc., 348 U.S. S.Ct. Optical, judgment judgment have merit. The will (1955) (“Or 461, 465, the re- L.Ed. 563 respects. therefore affirmed all time, step one at a address- form take problem which ing phase itself mind.”); legislative to the

seems most acute Agency, Inc. v. New

Railway Express 106, 110, 463,

York, 465- 336 U.S. S.Ct.

66, (1949) (“It require- is no 93 L.Ed. 533 protection that all evils of equal

ment of or none at genus

the same be eradicated all.”). jock- Thus we find no merit HOUGHTON, Donna M. challenge. eys’ equal protection Right Privacy The

C. v. jockeys The contend that the breath NEW JERSEY MANUFACTURERS testing, alyzer and urine which involve COMPANY, INSURANCE information, violate collection of medical Appellant. rights privacy respect their to such No. 85-1601. Supreme information. While both the recognized and this have Court Appeals, United States Court of information, right privacy in medical Third Circuit. governmental may support concerns the ac 2, Argued June 1986. the infor cess to such information where 17, July Decided protected from unauthorized dis mation 589, Roe, closure. v. 429 U.S. See Whalen (1977); 97 S.Ct. 5 L.Ed.2d 64 Westinghouse

United v. Electric States Cir.1980). (3d

Corp., 638 F.2d racing integrity

Commission’s concern for

justifies breathalyzer its access to the and-

urinalysis jockeys’ information. The con

cern, therefore, confidentiality. is limited to jockeys regulatory concede that concerning confidentiality,

amendments

proposed pending while their action was put into effect the Commission be final, becoming see N.J.Admin.Code

fore 13, 70:14A.ll(f) (1985), satisfy

tit.

their concerns if the amendments were en declaratory injunction

forced or a *2 Shaw, Jr., (argued),

Albert S. Patricia L. Arcuri, McCracken, Montgomery, Walker Rhoads, Philadelphia, appellant. & Pa. for Branca, Norristown, (argued), Thomas C. appellee. Pa. for Christie, Gold, preprinted provided by James W. Alan S. Griffith On a form Burr, P.C., Pa., Philadelphia, Equifax, specifically requested for amicus & curiae, Services, investigation Inc. include: “Activities accident”; (2) since date of fully “Cover Adler, Roll, Steptoe David L. Matthew H. (Illness, past history injuries, hospi- health (A. Johnson, D.C., Washington, & James talization, etc.)”; “General Finan- Ass’n, Brodsky, American Ins. New York *3 (Income, etc.).” cial property, Information counsel), curiae, City, for amicus Ameri- App. Equifax at 163a. Neither nor NJMI can Ins. Assn. Houghton request- notified that NJMI had ed ALDISERT, Judge, Before Chief and SLOYITER, Judges.

GARTH and Circuit 22, May 1979, Equifax On submitted to three-page report. App.

NJMI a at 164a. report THE COURT included information OPINION OF based on Houghton’s neigh- interviews with four of ALDISERT, Judge. Chief bors, previous report a regarding an insur- appeal requires This us to decide wheth- claim by Houghton’s ance made mother-in- recipient investigative report an er the law, Montgomery records, Court County prepared personal inju- for the defense of a previous reports search for Houghton, ry violating claim be held liable existing and an examination of “credit provisions notice and disclosure of the Fair report files.” The stated: “We did check (FCRA), Reporting Act Credit U.S.C. available credit files a confidential seq. relating “investigative 1681 et source, and up we are unable to come with reports” request it did not when irregularities.” financial App. at 164a. face, report, such a and the on its copy A was forwarded to NJMI’s counsel appear investigative did not to be an con- November, 1979, and in NJMI settled the sumer as defined in the statute. Houghton. case with The district court determined that the re- later, years 21, four Some on October cipient violated the FCRA’s notice and dis- 1983, Houghton first learned of the exist- requirements, closure and awarded dam- Equifax report, ence of and re- ages (1985). We conclude quested several times that NJMI disclose erred, that the district court and will there- her, repeated- its substance to which NJMI fore reverse. ly refused A year to do. later she filed this against alleging action NJMI inter alia I. that NJMI had violated the FCRA.1 On On November Donna M. summary cross judgment, motions for Houghton was involved in an automobile Equifax district court ruled that the Rosenfeld, collision with Bernice P. an in- investigative an as defendant, sured of Jersey New Manufac- FCRA, 407a-14a, app. defined at (NJMI). turers Insurance Company On notify Houghton and that NJMI’s failure to 16, 1979, plaintiff March against filed suit request subsequent of its and its refusal to injuries Rosenfeld for resulting from the disclose the therefore violated collision, including a claim for earn- lost 1681d(a) 1681d(b). FCRA and Id. at ings. 414a-17a.2 After a bench trial on dam- May requested On ages, NJMI Houghton awarded Services, Inc., $7,000.00 conduct an investi- compensatory punitive and gation Houghton $7,770.00 prepare fees, and damages, attorney’s written court, however, alleged also that NJMI had violated 2. The federal found no or state violation, right privacy her under the United States and constitutional and found that NJMI constitutions, Pennsylvania privacy Houghton's privacy invaded her had not invaded or inten- law, Pennsylvania tionally upon common and inten- inflicted emotional distress her. tionally upon App. inflicted emotional distress her. at 417a-23a. $1,284.66 423a, at Determining costs. Id. 427a. report Equifax that the sub- appeals. NJMI now mitted “investigative to NJMI was an con- report,” sumer the court said that NJMI

II. was liable for not notifying or disclosing challenges Before us NJMI the district report Houghton. disagree. We Be- Equifax report court’s that the re cause NJMI did not investiga- quested by investigative NJMI anwas con Equifax, tive consumer from meaning within the of FCRA report, face, because the on its did not 1681a(d). challenges also the de appear to be an consumer re- termination that it violated the FCRA port Equifax, from because the providing Houghton notice and disclo face, on its appear did not to be an investi- required by sure as the FCRA. Because gative as defined in the liability by summary was determined statute, we have decided that NJMI cannot judgment, apply we the same standard as be held liable for its failure comply *4 court; the district we must determine the Act’s notice and provisions. disclosure genuine whether “no issue as to a material trial, fact for and that the mov remain[ed] A. ing party judgment entitled to as a [was] matter of law.” Goodman v. The district persuaded Mead John court was that 566, (3d Cir.1976), son 534 F.2d 573 & NJMI had violated 1681d of the FCRA. § denied, cert. 429 U.S. 97 S.Ct. 50 This section covers only investigative con- (1977). L.Ed.2d 748 Review of the district reports requires sumer and persons all who questions court’s resolution of “procure law is or cause to prepared” be investi- plenary. See id. at 574. We are satisfied gative reports consumer notify to consum- that, essence, appeal distilled to its this ers reports pertain, to whom the and to presents questions of statutory construc reports disclose upon to them request.3 tion. Otherwise, unless adverse pertaining action credit, insurance, to employment or is tak-

III. en, 1681m, recipients (here, see or users § first NJMI) NJMI contests the district court’s of the information obtained from a determination that NJMI violated reporting consumer duty have no agency FCRA notifying Houghton not notify, to, that it any or disclose information requested had investigative an instances, consumer consumer. In those the Act af- report on argues her. It next that protection fords consumers through district court erred in concluding 1681g, requires which report- consumer § NJMI’s failure report (here, to disclose ing agencies Equifax) to disclose in- Houghton upon request her violated the formation in their files to the consumer FCRA. upon request.4 provides: 3. FCRA period § 1681d receipt by of time after the him of the required by (a)(1) disclosure subsection (a) person may procure A not or cause to complete this section shall make a and accu- prepared investigative report be an consumer scope rate disclosure of the nature and of the any on consumer unless— investigation requested____ (1) clearly accurately it is and disclosed to 15 U.S.C. 1681d. investigative the consumer that an consumer made, ... and such disclosure 1681g requires reporting Section consumer (A) mailed, writing is made in a or otherwise agencies consumer, upon disclose to a re- delivered, consumer, to the not later than nature, quest, substance, and sources of in- days three after the date on which the pertain formation in their files that to the con- requested was first (2). 1681g(a)(l) sumer. U.S.C. All recipients (b) reports of consumer Any must also be procures or causes to However, 1681g(a)(3). identified. Id. prepared investigative this consumer shall, requiring pertains only section disclosure upon request consumer written reporting agencies (e.g., Equifax), made consumer within a reasonable (S.D.N.Y.1981),

B. the district court determined that because the credit face, request, on its did Because NJMI’s Equifax information referred to in the re- investigative Equifax not for an con- ask port “originally collected for one ... report, we conclude that can- 1681b,” listed in the re- 1681d(a), violating for not be held liable port was a consumer as defined provision notice of the Act. App. the FCRA. at 411a. other Because every Not issued from or portions were obtained reporting agencies quali- other consumer interviews, the court also conclud- investigative as an fies “investigative ed that it was an definition under the statute. report,” and found NJMI liable under report” provides that a “consumer is a 1681d(a) for providing notice to report: requested when it expected to be used or collect [U]sed Equifax. from Id. at 415a n. 12. part purpose in whole or for the ed Our examination of the statute serving establishing as a factor in interpretation. leads to a different NJMI’s (1) eligibility for credit or in consumer’s “per indicated that it concerned a primarily person surance to be used injury sonal claim.” App. at It 163a. al, family, or household “Special asked for a Activities Check” lim employment purposes, pur other Information,” ited to “General Financial poses authorized under section 1681b of accident,” “Activities since date of this title. “past history.” health Nothing Id. in the 1681a(d). An con- *5 15 U.S.C. § request indicated that NJMI desired a re particular species of con- sumer is a port purpose on for a encom report: sumer passed statutory within the definition of an (e) “investigative The term consumer investigative report. consumer The re report” por- means a consumer or quest only genuineness concerned the in tion thereof which information on a Houghton’s personal injury claim and not character, general reputa- consumer’s “eligibility her for ... credit or insurance tion, characteristics, personal or mode of employment____” or 15 U.S.C. living through personal is obtained inter- 1681a(d). neighbors, friends, views with or associ- therefore hold that We because NJMI did reported ates of the consumer or on with not consumer re- acquainted others with whom he is or port Houghton, required no notice was may knowledge concerning any have 1681d(a). The district court erred such items of information. finding in otherwise. 1681a(e). Id. § IV. Relying on Heath v. Credit Bureau of Sheridan, Inc., (10th 618 F.2d 693 Cir. We next the examine court’s conclu 1980), Data, and Boothe v. TRW Credit sion that NJMI violated the FCRA disclo- recipients involving the users or of consumer re- furnished and extension cred- NJMI). (e.g., to, ports of, it or review or collection anof account consumer; 5. Section 1681b states: (B) intends to use the .information for em- § 1681b. Permissible of consumer ployment purposes; or reports (C) intends to use the information in con- reporting agency may A consumer furnish a underwriting nection with the of insurance following under the circum- consumer; involving the stances and no other:' (E) legitimate otherwise has a business a which it has To reason to be- need for the information in connection with lieve— involving business transaction consumer. (A) intends to use the information in con- 15 U.S.C. § 1681b. involving nection with a credit transaction consumer on the information is to whom be However, specific request. failing to disclose the we need not requirement for sure requested it. Houghton after she reach that issue under the facts before us. report to requires divulge statute one qua- request only if the report upon V. report” as defined lifies as a “consumer agree We also do not with the 1681a(d), previ- as set forth the statute district court’s alternative that ously in Part III B. 1681b(3)(E) broadly, should be read Equifax report did not On its face the any report include a business that detail to alert NJMI contain sufficient statutory transaction definition of investigative con- have obtained an and that NJMI therefore was sub- report from that duty report. had the to disclose the requirement. ject to the FCRA disclosure poten district court determined that mere single phrase of the only It was isolated liability policy tial under an insurance con prompted the district Equifax report that stituted a “business transaction” between was a to conclude that Houghton.6 A interpreta NJMI and broad Equifax “did check report: that language tion the “business transaction” credit files a confidential available 1681b(3)(E) specifici would render the up unable to come source ... [was] 1681a(d) b(3) ty meaningless. irregularities.” App. at any with financial We believe that business court conceded that had 164a. The district transaction must relate to one of the other phrase not been contained in the re- this specifically enumerated transactions Report port, position that the “[NJMI’s] 1681a(d) b(3), i.e., credit, insurance per- §§ would not a consumer eligibility, employment, licensing. This App. agree at 410a. We suasive.” say relationship is to that a consumer must nothing court that else in the district party requesting exist between the re bring it within the perimeters report,” port subject of a and the of the “consumer but we disagree phrase that the naked “available Here, relationship no such consumer ex- credit files” was sufficient to alert NJMI NJMI, party requesting isted between pale came within the *6 Houghton, and subject the the statutory Absolutely nothing definition. only parties the The who had a the indicates that the “available relationship were NJMI and credit files” served as a factor in establish- Rosenfeld, Bernice P. NJMI’s insured. (1) ing eligibility the consumer’s for credit Thus, prepared by the personal, or insurance to be used for fami- did not fall within the (2) ly, employment or household definition of a consumer legitimate purposes, or “a business need 1681b(3)(E). § for the information in connection with a reasoning We find the court’s in Coch- involving business transaction the consum- Co., Metropolitan ran v. Insurance 1681a(d) 1681b(3). er.” and Had See §§ Life (N.D.Ga.1979), persuasive. 472 827 Equifax report that it the shown on its face The Cochran court concluded that the inwas fact an consumer re- language “business transaction” port, though even did not included, 1681b(3)(E) report might reports pertain- such a it have been under an § insurance, obligation response ing “only disclose it in to a to to those information legal pro- vide its insured a 6. The district court stated: defense in court whole, ceedings coverages respect and certain to Equifax Report, taken as a The parties, plaintiff, prepared by Equifax other such as dur- “in connection with a defendant, ing business transaction” de- term of contract make claims the the insured, plaintiff, fendant’s and as a result of precise spelled under the conditions out in agreement parties. between those business that insurance contract. bound itself to a for insur- Defendant contract App. at 413a. agreed, premium, pro- for a ance where it reports prepared eligibility (finding to determine Cochran to be the better coverage underwriting, decision); insurance reasoned Daniels v. Retail Cred compiled to evaluate claims for CV-484, (N.D. not those Slip op. No. 72 at 7 The that benefits.” Id. at 832. court held 28, 1976) Apr. (“[RJeliance N.Y. on ... 1681a(d) “apparent conflict” between founded.”) § Beresh ... is not well should be resolved § We are convinced that Cochran is the recognizing preeminence 1681a opinion better reasoned and decide that the conforming and then breadth concluded, district erred when it as to the former’s bounds. Not to 1681b holding, an alternative this unnecessarily do this would render mean- came within the “business transaction” ingless language 1681a restrictive 1681b(3)(E). provision of NJMI’s failure thereby ignore a staunch can- Houghton, disclose the there- statutory interpretation. on of Conform- fore, law, as a matter of could not violate ing in- preserves 1681b to 1681a requirement. the FCRA’s disclosure sections, tegrity promoting of both while district court’s conclusion otherwise was purpose of the entire sub- underlying error. chapter. (footnote omitted). at 831 With the Id. VI. court, rely we on the rule that a Cochran We therefore hold that the district court interpreted give statute should be so as to in concluding erred that NJMI violated the every phrase effect to and not render notifying Houghton FCRA not that it part superfluous. Franklin, Colautti v. 379, 392, 675, 684, requested Equifax report had and then 439 U.S. 99 S.Ct. (1979); disclosing report Houghton. not Be- Armstrong L.Ed.2d 596 Paint & Houghton, cause NJMI is not liable to we Corp., Varnish Works v. Nu-Enamel 315, 332-33, 191, 199-200, appellant’s arguments U.S. 59 S.Ct. 83 need not address (1938), denied, L.Ed. 195 reh. concerning damages. judgment U.S. (1939). 59 S.Ct. L.Ed. 437 We also district court therefore be reversed and will rely ejusdem on the rule of generis will be pro- case remanded for further —when general words follow an enumeration of ceedings foregoing. consistent with the specific general terms the words are con strued to only objects embrace similar SLOVITER, Judge, concurring. Circuit objects nature to those enumerated join majority’s opinion I in all of the preceding specific words. Harrison v. exception fully of Part V but concur Industries, Inc., 578, 588, PPG 446 U.S. part with the conclusion reached in that (1980). 100 S.Ct. 64 L.Ed.2d 525 that an insurance claim includ- Here, the upon district court relied Ber- ed within the “business transaction” lan- *7 F.Supp. esh v. Retail Credit guage 1681b(3)(E). of section (C.D.Cal.1973), where the court ruled an recapitulate briefly, Houghton, To insurance claim came injured in an accident with NJMI’s language within “the broad of insured, contends that the NJMI re- 1681b(3)(E).” Id. at 262. The Beresh § quested and received in from order court, however, supply persuasive did not Houghton’s to validity evaluate the attempt reasoned elaboration. It did not report”. claim was a “consumer “Consum- analyze 1681a(d) interpretation of § report” 1681a(d) er is defined in cer- 1681b(3), as apply concepts § or of statu- § tain information collected to establish “the tory construction. Several courts have (1) eligibility consumer’s for See, criticized the in credit or insur- e.g., Beresh. Cochran, ance (“[W]e primarily personal, at to be used for find (2) family, 1681a and 1681b should or not be read household or em- §§ way____”); Pickle, (3) in the ployment purposes, purposes Beresh Kiblen v. or other 33 Wash.App. 653 P.2d 1342 authorized under section of this ti- 1681b 1681b(3)(E) 1. I tie.” It is the interaction subsection am concerned that if § 1681b, refers, given is a limited to which it such construction when the section that subsection is considered in connection that raises the issue here. with the definition of consumer it There is not a neat fit between them. given a similar construction when 1681b, Section which is set forth in the considered in the context of the in section margin,1 is directed to the circumstances appears. section, 1681b, which That reporting agency consumer under which a provides that “a consumer reporting agen- may furnish a consumer The most cy may a furnish consumer language plausible construction of the is to following circumstances and no other” purposes” language of read “the other added). (emphasis majority’s language 1681a(d) incorporating “purposes” as suggest could be read that a consumer 1681b(3), set forth in so that a consumer reporting agency may furnish a consumer defined, alia, inter as a to report only in connection with a credit purposes be used for the enumerated in transaction, underwriting insurance, 1681(b)(3). permits This subsection a employment, licensing. or Although no reporting agency consumer to furnish a consumer reporting agency is a defendant persons consumer which it has here, majority’s stress of the specificity reason to believe intend to use the informa- 1681b(3)(A) (D) through support its §§ designated pur- tion connection with five construction defining for a con- (A) transaction; poses: personal a credit easily is not separable from (B) (C) employment purposes; the under- construction of the same section in the writing of insurance the consum- permissible context of the distribution er; (D) benefit; (E) licensing or similar or reporting agency. legit- to a who “otherwise has a applies The construction the majority imate business need for the information is inconsistent with the established canon it connection with a business transaction in- refers to that “a statute should be inter- volving the consumer.” preted give every phrase so as to effect to (E) majority gives subsection an ex- any part superfluous.” and not render Ma- states, tremely limited construction when it jority majority’s at 1150. The construction 1681b(3)(E) “We believe that busi- (E) (E) superfluous. renders subsection If ness transaction must relate to one of the preceding subsections, is limited to the four specifically other enumerated transactions Congress there was no reason for to have 1681a(d) b(3), i.e., credit, insur- Furthermore, it into written the statute. if eligibility, employment licensing.” ance Congress did not intend that § Majority at join 1149. I hesitate to preceding be broader than the subsections majority’s following (A) (D), construction for the it would not have intro- (E) reasons: duced subsection with the words “oth- (B) provides: 1. 15 U.S.C. § 1681b intends to use the information em- ployment purposes; reporting agency may A furnish (C) following under the circum- intends to use the information in con- stances and no other: underwriting nection with the of insurance response In consumer; to the order of a court hav- involving the ing jurisdiction to issue such an order. (D) intends to use the information in con- (2) In accordance with the instruc- written nection with a determination of the consum- tions of the consumer to whom it relates. eligibility er’s for a license or other benefit *8 To a which it has reason be- granted by governmental instrumentality re- lieve— quired by applicant’s law to consider an finan- (A) intends to use the information in con- status; responsibility cial involving with a nection credit transaction the (E) legitimate otherwise has a business consumer on whom the information is to be need for the information in connection with a involving furnished and the extension of cred- involving business transaction the consumer. to, of, or review or collection of an account consumer; the legitímate porting agency provide has need erwise business ...” information in added). (emphasis legitimate with a connection business trans- (A) (D). specified action not adopt reasoning in 3. I also would the Metropolitan v. Insurance sum, Cochran extending In analy- rather than Life (N.D.Ga.1979), F.Supp. 827 I but implicate sis in this case to issues not be- compelling do not read that case as us, fore I limit would con- majority's Cochran, In construction. struction of in this case to court limited its discussion to the issue of that an insurance claim investigative report prepared whether an in is not a business transaction within that disability connection with a medical claim section. This construction is consistent report”. could be considered a “consumer with the Federal Trade Commission’s ad- reasoned that because elsewhere interpretation Act,2 ministrative of the Congress expressed its the same statute suffices for of deciding the case reports for insur- definition of before us. 1681a(d)(l), ance see 1681b(3)(C), expand the courts could not gath-

the definition to include information

ered to substantiate insurance claims. Id. reasoning provides I

at 831. believe that

ample basis for the conclusion that

relationship between and NJMI type not the of business transaction 1681b(3)(E). encompassed by § SPECIALIZED CARRIERS & RIGGING ASSOC., Appellant, compelled 4. If we were to make a de- 1681b(3)(E), finitive construction of and I v. not, prefer think we are I would the read- VIRGINIA; COMMONWEALTH OF Ha- ing suggested majori- statute Suthard, King; Appellees. rold C. R.L. ty’s opinion, adopted by it. The but not No. 85-2059. majority general notes that “when words specific follow an enumeration of terms the Appeals, United States Court of general words are construed to embrace Fourth Circuit. only objects similar in nature to those ob- Argued jects Feb. 1986. preceding specific enumerated words.” Majority Thus, at 1150. subsec- July Decided 1986. (E) tion encompasses types of business transactions similar to those set forth in (A) through (D),

subsections but is not

strictly Although limited to them. I cannot

anticipate types all of the of business trans- (E)

actions to which apply subsection my construction, I believe the section permit

should be read to a consumer re- 603(d)(1)), example, pamphlet 2. For in an FTC on the or in connection with “under- FCRA, following appears: writing involving of insurance the consumer” REPORTS”, (Section Further, 604(3)(C)). Question: Are "CLAIMS “AD- such a reports JUSTMENT REPORTS” or other ob- not obtained in connection with “a business tained an insurer in connection with an (Section transaction the consumer” report? insurance claim a consumer 604(3)(E)), at the time it is obtained. Accord- No, Answer: not at the time obtained. A ingly, such a claims is not a "consumer on a consumer obtained an insur- report". company ance against in connection with a claim 11,307 59,- (CCH) 5 Consumer Credit Guide at it, is not used to determine a consum- (1977) (footnote omitted). (Section "eligibility" er's insurance