The Guidance suggests that financial institutions should draft procedures for verifying that the requestor of the information is in fact a member of law enforcement. Once the requestor is verified, Disclosure of SARs to appropriate law enforcement and supervisory agencies is protected by the safe harbor provisions applicable to both voluntary and mandatory suspicious activity reporting by financial institutions.16 The Guidance continues on to define the meaning of “supporting documentation” as “all documents or records that assisted a financial institution in making the determination that certain activity required a SAR filing.”17 This included any spreadsheets, statements, reports, recordings, email messages, or other information which is related to the conclusion that the transaction required a SAR filing. The documents do not have to be indicative of a crime or even related to the account or person who is the subject of the filing, but any information which may have led to the conclusion that the SAR was required. The Guidance also notes that although the RFPA generally prohibits financial institutions from disclosing such information, there is no such prohibition in sharing such information with an agency exercising its “supervisory, regulatory or monetary functions”.18 The Guidance also states that FinCEN has interpreted these regulations under BSA to require financial institutions to provide supporting documentation “even in the absence of legal process”. For more information, please contact Robert (Bob) Kardell, at 402.636.8313, bkardell@bairdholm.com, or visit bairdholm.com. The Right to Financial Privacy Act (“RFPA”) protects all customer information by establishing requirements for the federal government to obtain a customer’s financial records. Whatever Loan You Need, We Can Help. 34613 Member FDIC www.bell.bank Reg. O loans | Holding company loans & lines of credit | Equipment financing | Participation loans Whether your loan is large or small, get faster turnaround from our experienced correspondent team. Callie Schlieman Call me at 701.433.7430 – Based in Fargo 34613 AD Nebraska Bankers Association 2022_Callie.indd 1 4/7/22 11:58 AM 1 This article is only intended to cover the response of a bank to a federal grand jury subpoena. There are, of course, many other methods for law enforcement or regulatory agencies to seek access to information covered by the RFPA, such as intelligence requests, search warrants, regulatory requests, administrative requests, and many other such requests. Each type of request has its own unique legal requirements, disclosure or nondisclosure restrictions, exceptions, and compliance issues which should be discussed completely with your legal or compliance professional before a response is provided. 2 12 U.S. Code § 3401 et seq. 3 12 U.S. Code § 3403(a) 4 12 U.S. Code § 3402 5 “Financial records” are defined as “an original of, a copy of, or information known to have been derived from” a customer’s bank records. 12 U.S.C. § 3401(2). In Hunt v. SEC, 520 F. Supp. 580 (N.D.Tex.1981), the court held that the plain meaning of the language of § 3401(2) “clearly includes oral testimony relating to a customer’s relationship with a bank or financial institution.” Id. at 605. “We agree.” Anderson v. La Junta State Bank, 115 F.3d 756, 759 (10th Cir. 1997) 6 12 U.S. Code § 3411 7 12 U.S. Code § 3420(b) 8 12 U.S. Code § 3413(i) 9 12 U.S. Code § 3409(b)(1) 10 12 U.S. Code § 3409(b)(2) 11 31 CFR § 1020.320(a)(1) 12 31 CFR § 1020.320(b) 13 31 CFR § 1020.320(d) 14 IBID 15 FIN-2007-G003, issued June 13, 2007, https://www.sec.gov/about/ offices/ocie/amlmf/fin-2007-g003.pdf 16 ID at pg. 3 17 IBID 18 ID at pg. 3 24
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