When Local Law Enforcement Wants Information

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Question:

Due to the rise in check fraud and identity theft, we are receiving more and more requests for customer and account information from local law enforcement. These investigations may or may not involve a bank loss, and some of the investigations are the result of a customer's police report. Do you know of clear-cut guidelines when we can provide the requested information or when a subpoena or search warrant is required? We want to help stop crime, but I wish not to contact outside counsel every time a law enforcement request comes in.

Answer:

Answer by Dana Turner:

I don't believe that you need to contact your legal counsel every time your institution receives a subpoena -- but he/she should develop a policy and procedure for handling one.

I do believe, however, that you should contact your legal counsel every time that your institution is served with a search warrant. The differences between search warrants and subpoenas are monumental -- and so are the penalties if you don't respond to one appropriately.

I've forwarded my seminar workbook material for the "Working With Cops, Lawyers & Judges" to BOL with permission to post it. This material addresses your question in detail and it should help all of BOL's users understand this country's legal system.

Caveat emptor -- I'm not an attorney!

Answer:

Answer by Mary Beth Guard:

If these were federal search warrants and subpoenas for the records of "customers" as that term is defined in the Right to Financial Privacy Act, you would have clearcut guidance for how to proceed. On search warrants from federal authorities, the customer is not entitled to prior notice or an opportunity to challenge. (Notice is given to the customer by the federal authority up to 90 days after the records have been requested or obtained.) On subpoenas involving federal authorities, however, the customer is generally entitled to notice and an opportunity to challenge unless an exception applies. (And there are many exceptions, including one that applies when the customer whose records are sought and the federal government entity seeking them are both parties to the court or administrative proceeding.)

When you receive a request from local law enforcement, however, the federal Right to Financial Privacy Act is inapplicable and you must look to state statutes and caselaw to determine if, and under what procedure, you may release the information. For example, in Oklahoma, there is a parallel provision in the state financial privacy act that allows records to be produced to local law enforcement pursuant to a search warrant. As Dana suggests, your institution's attorney can help formulate a procedure for responding to these types of requests based upon your state's law.

First published on BankersOnline.com 1/6/03