Discipline Not Out of the Question in 6(b) Situation; CR Got Info on at least 10% of Affected Firms

Disciplinary action is not off the table in CPSC's internal investigation of information released outside 6(b) procedures, but that possibility is tempered with the phrase, "if warranted." That status was among new information in a CPSC FAQ page (bit.ly/2JMqzHs) on the situation.

The detail comes in a response to a question about who did the releasing and what is being done about it. The answer to who is not given, and the agency explains that its inspector general (IG) office still is looking into the matter. A decision about discipline or any other needed actions will come after the IG's report.

About a third of the FAQ involves the agency's five-step process for dealing with the situation (PSL, 5/2/19), and it gives a few new details not reported by PSL earlier:

• About one in ten of the 11,000 affected manufacturers are getting additional information about three disclosures to Consumer Reports as part of phase two. These 1,100 companies were those that both responded to CPSC's initial phase-one outreach and were affected by the CR disclosures.

 

• Some 320 CR-affected firms also are getting additional information in phase three based on requests for more details. This is in spreadsheets previously described by PSL (they protect information on other companies in cases of overlap).

 

• Another roughly 9.6% of the affected companies – 1,060 – will be getting information on releases that did not involve Consumer Reports. This will occur in phases four and five, which duplicate two and three.

Some other details not previously reported by PSL included:

• "Almost all" of the 29 recipients have agreed to the agency's request to return or certify destruction of the information. This is progress from early May when the estimate was at about half. CPSC wrote that it is continuing to reach out to the "few" that have not done so. Consumer Reports still is the only one named as declining.

 

• The FoIA office will use a two-step verification process in reviews of information before it is released, including for materials released via the Information Clearinghouse (the source of the problem).


 
• There were a few cases of personally identifiable information (PII) being released, but the agency wrote, "A multi-disciplinary team, using government guidelines, performed an assessment of this PII. Its assessment resulted in the determination that the PII involved presented a low risk of harm for potentially affected individuals."

 

• CPSC has set up an email address – disclosurecheck@cpsc.gov – for companies that have not been contacted as affected but want to verify their status. This is in addition to the manufacturerreply@cpsc.gov address set up to correspond with affected companies (PSL, 4/15/19).

The release of information occurred at least in the range of late 2017 to early 2019 (PSL, 5/2/19), with the three releases to Consumer Reports occurring in December 2017, August 2018, and February 2019. CR explained that it rebuffed CPSC's return/destroy request because it sees it as a duty to release product incident details (PSL, 4/22/19). The situation is directly linked to CR's promotion of deaths associated with inclined sleepers, leading to recalls by Fisher-Price and Kids II.

Although most attention has been on information being released outside the law – and potential harm to companies – consumer groups and others have countered that it shows CPSC's information-release duties are extreme and that such disclosures occur regularly at other agencies without controversy (PSL, 5/6/19). The situation with sleepers also has led to criticisms of CPSC's recall abilities and to calls for improvements (PSL, 5/6/19).

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Other PSL stories related to this matter:

CPSC Details In-Progress Mitigation of Disclosures; 11K Firms Affected

CPSC changed its information-release procedures in early April in reaction to its problematic disclosures to 29 recipients since 2017 and affecting approximately 11,000 companies.

Respond Now to Notices of Unauthorized Disclosures, CPSC Urges Companies

Companies need to confirm to CPSC immediately that they received letters about unauthorized release of their information.

Disclosures Outside 6(b) Occurred for Year-Plus; CR Rebuffs Return Requests

CPSC's recurring disclosures of companies' information outside 6(b) procedures happened for over a year, and at least one recipient has rejected the agency's request to return or certify destruction of the materials.

CR Gives Insight into Link between 6(b) and Sleeper Developments

Consumer Reports (CR) April 18 told PSL it saw a "duty" to consumers to publicize incidents CPSC provided outside the 6(b) process, and it confirmed the connection to the Fisher-Price Rock 'n' Play matter.