Legal Seminar

Section 1512(b) of the SAFE Act then provides that information that is privileged or confidential under subsection (a) “. . . shall not be subject to disclosure under any Federal or State law governing the disclosure to the public of information held by an officer or an agency of . . . the respective State; . . .”. Thus, section 1512(a) preserves the application of privilege and confidentiality protections to information shared with the NMLS or certain federal and state regulatory agencies and section 1512(b) preempts the application of state laws governing public disclosure of information protected by virtue of section 1512(a). Here, the information requested is covered by section 1512(a) as information shared with NMLS. Specifically, Ms. Rubin has requested all correspondence to, from, or between certain CSBS employees and a Department employee. In sharing information with employees of CSBS, the administrator of NMLS, the Department employee has shared the information with and disclosed the information to NMLS as is contemplated by subsection (a). Since the requested information is subject to a privilege or confidentiality under subsection (a), subsection (b) prohibits the disclosure of the information under the Illinois FOIA. The Illinois FOIA is a “State law governing the disclosure to the public of information held by an officer or an agency of . . . the respective State” and, as such, is a law to which the requested information “shall not be subject”. Since section 1512(b) prohibits the disclosure of the requested information, the requested information is also exempt from disclosure under Section (7)(1)(a) of the Illinois FOIA. Additionally, the SAFE Act also would prevent the disclosure of the requested information to the extent that the requested information includes information provided by another state that provides stronger privilege or more confidentiality protections than Illinois. Section 1512(c) of the SAFE Act states: (c) Coordination with other law. Any State law, including any State open record law, relating to the disclosure of confidential supervisory information or any information or material described in subsection (a) that is inconsistent with subsection (a) shall be superseded by the requirements of such provision to the extent State law provides less confidentiality or a weaker privilege. Here, the requested information may include information provided by another state. Accordingly, to the extent that the Illinois FOIA provides less confidentiality or a weaker privilege than the providing state’s laws, disclosure under the Illinois FOIA to a greater extent than is permitted under the providing state’s law would be prohibited by section 1512(c) of the SAFE Act. The requester, in this instance, has been actively engaged in seeking the requested information under the public disclosure laws of other states. The requester was recently denied access by the state of Connecticut to information similar to that requested from the Department on the grounds that the information was exempt from disclosure under Connecticut law. 6 Thus, to the extent that the Illinois FOIA is otherwise deemed to require disclosure of the requested information, the Illinois FOIA would (a) System confidentiality. Except as otherwise provided in this section, any requirement under Federal or State law regarding the privacy or confidentiality of any information or material provided to the Nationwide Mortgage Licensing System and Registry or . . ., and any privilege arising under Federal or State law (including the rules of any Federal or State court) with respect to such information or material, shall continue to apply to such information or material after the information or material has been disclosed to the system. Such information and material may be shared with all State and Federal regulatory officials with mortgage or financial services industry oversight authority without the loss of privilege or the loss of confidentiality protections provided by Federal and State laws. 6 See Proposed Final Decision in the Matter of a Complaint by Ross Garber, Docket #FIC 2019-0159, paragraph 23 (March 3, 2020), available at : https://portal.ct.gov/-/media/FOI/Agendas/2020/Mar11/2019-0159.pdf.