CFPB Issues Guidance Regarding Treatment of Confidential Supervisory Information
On January 4, the CFPB issued Bulletin 12-01 regarding treatment of privileged and confidential information collected during CFPB's supervisory processes. The Bulletin addresses the concern of supervised institutions that providing attorney-client privileged or work product documents during the supervisory process will waive such privileges with respect to third parties. The CFPB contends in the Bulletin that any privilege would not be waived by obligatory production to the CFPB, and that the CFPB "will not consider waiver concerns to be a valid basis for the withholding of privileged information responsive to a supervisory request." Nonetheless, the Bulletin indicates that the CFPB will give "due consideration" to requests to limit the scope of requests for privileged information, and invites institutions to "memorialize privilege claims when conveying privileged documents" to the CFPB. The Bulletin also clarifies all information obtained in the supervisory process will be exempt from production in response to Freedom of Information Act requests, but that sharing of information between federal and state supervisory and enforcement authorities may be required or appropriate in certain circumstances.