I have a question on whether or not the need for a subpoena by law enforcement has changed with the Patriot Act? Does everyone from BOL require a subpoena for requests by law enforcement for customer accounts? I think we should require a subpoena, but someone told me that we didn’t necessarily need to because of a new rule in the Patriot Act. Thanks for your help!

If you filed a SAR on a customer and then receive a request from law enforcement for further information ABOUT THE SAR you can provide it without a subpoena. Just make sure that any inormation that you provide relates to the SAR, such as any supporting documentation in your files when you filed. Any other request should be accompanied by a subpoena.

What about a request for information on a customer where a SAR has not previously been filed? Are you saying that you would require a subpoena before releasing this information? We have always done so in the past, but someone mentioned they thought the patriot act may have loosened the reigns a little bit on these requests from law enforcement.

I don't see how you can release info on a customer without a subpoena unless, as I stated earlier, you filed a SAR and now law enforcement is requesting more info on the SAR situation.

Devsfan, thanks for the help. Here is the actual situation involving a mother and her daughter. The daughter has been receiving checks (due to a settlement from her father who passed away). The mother has been forging the endorsement and either cashing the checks or depositing them into her own account. The daughter finally realized what was going on and we told her to go to the police. Upon doing so, the local law enforcement arrived at our bank requesting to see the backs of the checks to check the endorsement. In the past, our attorney always required a subpoena from any government agency requesting customer information. However, we recently changed attorneys’ and our new attorney stated that most banks no longer require a subpoena for this type of request by law enforcement. I wanted to see what BOL’s had to say about this. Devsfan, I know you have already answered my question but I wanted to give you the actual situation and see what you thought. Thanks again for the help!

There are two problems you have to address when looking at this issue: 1) if you disclose non-public information to law enforcement and that leads to a prosecution there's a good chance that the evidence and anything it lead to will be thrown out of court. 2) your privacy policy probably says you won't disclose non-public information to a non-affiliated 3rd party . . . and law enforcement is a non-affiliated 3rd party.

But here's what you can do. If law enforcement starts sniffing around one of your accounts, look for any excuse to file a SAR. The SAR is you, as a private citizen, saying there's something odd here. Law enforcement is always free to act on tips received from the public and your privacy policy surely states that you will disclose things "required by law" and the law requires you to file SAR's.

Just make sure you can justify any SAR that you file.

If the daughter is the payee, get her to sign a release allowing you to give the copies to the police. Note that your bank may have some liability here.

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The daughter finally realized what was going on and we told her to go to the police.

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In this situation all you need is an affidavit of forgery from the daughter. The checks are made out to her so she's entitled to copies which she can (and should) give to the police.

I would have sent her to the PD with the affidavit and copies of the checks in her hands. No subpoena required.

Also, remember that the SAR and ALL supporting documentation relating to a filing immediately becomes the property of the U.S. Government when filed. So you can safely disclose any and all of the "supporting" documentation to law enforcement without a subpeona, and that can add up to a lot more info than simply the form itself.

State law often permits law enforcement agencies to obtain certain information by submitting a letter under a specific statute and/or permits a bank to supply information to law enforcement if it suspects a crime may have been committed. One should check state law to determine if any such basis exists to give the information to law enforcement without a subpoena.

With respect to a bank's privacy policy, most privacy policies usually have an exception for disclosures required by law or legal process.

I'd recommend putting the burden on the state agency to provide you with a state law citation permitting them to request -- and you to provide -- the information without subpoena. And I'd suggest that it be a specific citation to statute and section and/or regulation, which you can then review with bank counsel before responding.