Can anyone point us to some specific examples of when the certificate of compliance is required when a federal government agency is requesting information? The exceptions in section 3413 of the RFPA seem very comprehensive. Is there guidance to assist in their interpretation?

For example, if the Inspector General of the U.S. Postal Service issues a subpoena for bank records as part of an investigation of mail fraud, does that fall under exception e, Disclosure pursuant to Federal Rules of Criminal Procedure or would a certificate of compliance be required?

What would be examples when the certificate of compliance is required that do not fail under any of the exceptions?

A subpoena under the Federal Rules of Criminal Procedure would come from a federal court.

The Cert of Compliance is to determine that requests for customer information from federal government entities are responded to in accordance with the RFPA and reduce the bank's liability.

One of the RFPA training docs I have emphasizes getting this when you hade an Administrative or Judicial subpoena as well as a search warrant. Here is an excerpt:

The certificate of compliance provision is one of the most important parts of the RFPA. It
provides protection from liability for the financial institution IF it is utilized correctly.
• Section 3403(b) of the RFPA says: "A financial institution shall not release the
financial records of a customer until the Government authority seeking such
records certifies in writing to the financial institution that it has complied with
the applicable provisions of this chapter."

• Section 3417(c) says: "Any financial institution or agent or employee thereof
making a disclosure of financial records pursuant to this chapter in good-faith
reliance upon a certificate by any Government authority or pursuant to the
provisions of section 3413(l) of this title [the section which pertains to providing
records of an officer, director, employee,\ or controlling shareholder of a financial
institution or a major borrower from the institution, who there is reason to believe
is violating a law relating to crimes against financial institutions or supervisory
agencies or any provision of subchapter II of chapter 53 of Title 31 or of section
1956 or 1957 of Title 18] shall not be liable to the customer for such disclosure
under this chapter, the constitution of any State, or any law or regulation of any
State or any political subdivision of any State."

• Because of the thorough protection from liability offered by a Certificate of
Compliance, the financial institution should always determine if it is entitled to a
Certificate of Compliance and wait to turn over the records until one is furnished.


Exceptions to Notice and Challenge
The types of records requests listed below are exempt from the Federal Right to
Financial Privacy Act.

If an exception applies:
• the customer whose records are sought is not entitled to notice and an opportunity
to challenge the records request
• generally means that the financial institution may not be entitled to reimbursement
and

Exceptions in Section 3413 of the RFPA apply to the following types of disclosures or
types of information:

l. Financial records not identified with or identifiable as being derived from the
financial records of a particular customer;

2. Disclosure of information or examination by any supervisory agency in the exercise of
its supervisory, regulatory, or monetary functions, including conservatorship or
receivership functions;

3. Disclosure of financial records in accordance with procedures authorized by
Title 26 of the United States Code (the Internal Revenue Code);

Do NOT make the mistake of thinking that ALL requests from the IRS are exempt
from the RFPA. It is only those requests that follow alternative procedures in
the Internal Revenue Code (Title 26) that do not follow the RFPA. Instead they
follow the Internal Revenue Code procedures.

The most common example is the IRS third-party recordkeeper summons. That
type of summons goes to a financial institution from IRS, seeking financial records
or information relating to a delinquent taxpayer. It falls under a provision in the
Internal Revenue Code that allows the IRS to obtain the records without having to
provide advance notice and an opportunity to challenge to the taxpayer/customer.

4. Disclosure of information required to be reported in accordance with any
Federal statute or rule promulgated thereunder;

***5. Disclosure to a Government authority under the Federal Rules of Civil Procedure
or Criminal Procedure or comparable rules in connection with litigation to which the
Government authority and the customer are parties;

***6. Disclosure to a Government authority pursuant to an administrative subpoena
in an adjudicatory proceeding to which the Government authority and the
customer are parties. (Note that the administrative proceeding must be one that is
subject to 5 U.S.C. Section 554;

7. Disclosure to a government authority for a legitimate law enforcement inquiry of
name, address, account number, and type of account of any customer or
ascertainable group of customers associated:

• with a financial transaction or class of financial transactions; or
• with a foreign country or subdivision thereof in the case of a Government authority
exercise financial controls over foreign accounts in the United States under
section 5(b) of the Trading with the Enemy Act, the International Emergency
Economic Powers Act, or section 287c of Title 22 (economic sanctions.)

8. Disclosure pursuant to a lawful proceeding, investigation, etc. directed at
financial institution or legal entity which is not a customer; [Note: Under this section,
if records are produced, the government authority is required to give the financial institution
a Certificate of compliance.];

9. Disclosure in connection with the authority's consideration or administration of
assistance to a customer in the form of a Government loan, loan guaranty, or loan
insurance program. [Note: Once again, the government authority is required to give the
financial institution a Certificate of Compliance; if, however, they give the certificate and
later require subsequent access to the information during the term of the loan, loan
guaranty, or loan insurance agreement, no further certification is necessary.];
Special Note: When a customer applies for participation in a Government loan, loan
guaranty, or loan insurance program, the Government authority (since the enactment
of the RFPA) is required to give the customer written notice of the authority's access
rights under this subsection (3413(h)(2)). No further notification is required for
subsequent access. Financial records that are obtained under this subsection may be
used only for the purpose for which they were originally obtained and may be transferred
to another agency or department only when the transfer is to facilitate a lawful proceeding,
investigation, examination, or inspection directed at either a financial institution or a legal
entity that is not a "customer". AND notification that records obtained pursuant to this
subsection may relate to a potential civil, criminal, or regulatory violation by a
customer may be given to an agency or department with jurisdiction over that
violation, and such agency or department may then seek access to the records
pursuant to the provisions of this chapter.
Special Responsibility: Each financial institution is required to keep a notation of
each disclosure made pursuant to paragraph (1)(B) of Section 3413 [the section
relating to loan guarantees, etc.] That "notation" or record should include l) the
date of the disclosure; and 2) the Government authority to which it was made.
The customer is entitled to inspect the information.

10. Disclosure pursuant to a subpoena or court order issued in connection with
proceedings before a federal grand jury. Note: Nothing in the RFPA, other than the
provisions on cost reimbursement (3415) and the special section on grand jury subpoenas
(3420) apply to a federal grand jury subpoena or federal grand jury court order. [See
the section of these materials that specifically relates to grand juries.]

11. Disclosure to the General Accounting Office pursuant to an authorized
proceeding, investigation, examination or audit directed at a government
authority.

12. Disclosure of the name and address of any customer to the: Department of
the Treasury; Social Security Administration; or the Railroad Retirement Board
where the information is necessary to, and the information is used solely for
the purpose of the proper administration of:
26 U.S.C. Section 1441;
42 U.S.C. Section 402, et seq.; or 45 U.S.C. Section 231, et seq.
Special Note: If information is produced pursuant to this exception, any request
authorized by #12 (and the information contained in the request) may be used by
the financial institution or its agents solely for the purpose of providing the
customer's name and address to the Department of the Treasury, the Social
Security Administration, or the Railroad Retirement Board and the financial
institution is barred from redisclosure, including through its agents.

13. Disclosure of any financial record of an officer, director, employee, or
controlling shareholder of the financial institution or any major borrower from
the institution who there is reason to believe may be acting in concert with any such
officer, director, employee, or controlling shareholder TO THE U.S. ATTORNEY
GENERAL, TO A STATE LAW ENFORCEMENT AGENCY, OR IN THE CASE OF A
POSSIBLE VIOLATION OF SUBCHAPTER II OF CHAPTER 53 OF TITLE 31 [monetary
transactions], TO THE SECRETARY OF THE TREASURY, if there is reason to
believe the record is relevant to a violation by such person of either:

• any law relating to crimes against financial institutions or supervisory agencies by
directors, officers, employees, or controlling shareholders of, or by borrowers from,
financial institutions; or
• any provision of subchapter II of chapter 53 of Title 3 [monetary transactions]1, or of
section 1956 [money laundering] or 1957 [ deposit, withdrawal, transfer, or
exchange, in or affecting interstate or foreign commerce, of funds or a monetary
instrument by, through, or to a financial institution if the funds are derived from
specified unlawful activities] of Title 18.

14. Disclosure to or examination by employees or agents of the Board of Governors
of the Federal Reserve System or any Federal Reserve Bank of financial records or
information in the exercise of the Federal Reserve System's authority to extend credit
to the financial institutions or others;

15. Disclosure to or examination by the Resolution Trust Corporation or its
employees or agents of financial records or information in the exercise of its
conservatorship, receivership, or liquidation functions with respect to a financial
institution;

16. Disclosure to or examination by the Federal Housing Finance Board or any of
the Federal home loan banks of financial records or information in the exercise of
the Federal Housing Finance Board's authority to extend credit (either directly or
through a Federal home loan bank) to financial institutions or others.

17. Disclosure by a financial institution of the name and address of any customer to the
Department of Veterans Affairs where the disclosure of the information is
necessary to, and such information is used solely for the purpose of, the proper
administration of benefits programs under laws administered by the Secretary.
NOTE: Any request authorized in this part (#17 herein) (and the information contained
therein) may be used by the financial institution or its agents solely for the purpose of
providing the customer's name and address to the Department of Veterans Affairs and
shall be barred from redisclosure by the financial institution or its agents.

THE ITEMS ENUMERATED 1 THROUGH 17 ABOVE
CONSTITUTE EXCEPTIONS TO THE NORMAL NOTICE
AND CHALLENGE PROCEDURES UNDER THE RFPA.
On records requests which fit within the exceptions listed
above, the government authority is not required to provide
the customer notice and an opportunity to challenge.
Where noted, the financial institution itself may be
prohibited from disclosing information regarding the
receipt of the records request to its customer or to any
other party.

Some of the exceptions are exceptions to the prohibition against disclosure. Other
exceptions are total exceptions from the RFPA, meaning that nothing in the RFPA
would apply to them.

This was very helpful, Andy.