[Title 32 CFR 504.2]
[Code of Federal Regulations (annual edition) - July 1, 2002 Edition]
[Title 32 - NATIONAL DEFENSE]
[Chapter V - DEPARTMENT OF THE ARMY]
[Subchapter A - AID OF CIVIL AUTHORITIES AND PUBLIC RELATIONS]
[Part 504 - OBTAINING INFORMATION FROM FINANCIAL INSTITUTIONS]
[Sec. 504.2 - Procedures.]
[From the U.S. Government Printing Office]
32NATIONAL DEFENSE32002-07-012002-07-01falseProcedures.504.2Sec. 504.2NATIONAL DEFENSEDEPARTMENT OF THE ARMYAID OF CIVIL AUTHORITIES AND PUBLIC RELATIONSOBTAINING INFORMATION FROM FINANCIAL INSTITUTIONS
Sec. 504.2 Procedures.
(a) General. A law enforcement official seeking access to a person's
financial records will, when feasible, obtain the customer's consent.
This chapter also sets forth other authorized procedures for obtaining
financial records if it is not feasible to obtain the customer's
consent. Authorized procedures for obtaining financial records follow.
All communications with a US Attorney or a US District Court, as
required by this regulation, will be coordinated with the supporting
staff judge advocate before dispatch.
(b) Customer consent. (1) A law enforcement office or personnel
security element may gain access to or a copy of a customer's financial
records by obtaining the customer's consent and authorization in
writing. (See app. B for a sample format.) Any consent obtained under
the provisions of this paragraph must--
(i) Be in writing, signed, and dated.
(ii) Identify the particular financial records being disclosed.
(iii) State that the customer may revoke the consent at any time
before disclosure.
(iv) Specify the purpose of disclosure and to which agency the
records may be disclosed.
(v) Authorize the disclosure for a period not over 3 months.
(vi) Contain a ``Statement of Customer Rights Under the Right to
Financial Privacy Act of 1978'' (app. B).
(2) Any customer's consent not containing all of the elements listed
in
[[Page 20]]
paragraph a of this section will not be valid.
(3) A copy of the customer's consent will be made a part of the law
enforcement inquiry file.
(4) A certification of compliance with 12 U.S.C. 3401 et seq. (app.
C), along with the customer's consent, will be provided to the financial
institution as a prerequisite to obtaining access to the financial
records.
(5) The annual reporting requirements of Sec. 504.2(m) apply to
requests made to a financial institution even with the customer's
consent.
(c) Administrative summons or subpoena. The Army has no authority to
issue an administrative summons or subpoena for access to financial
records.
(d) Search warrant. (1) A law enforcement office may obtain
financial records by using a search warrant obtained under Rule 41 of
the Federal Rules of Criminal Procedure in appropriate cases.
(2) No later than 90 days after the search warrant is served, unless
a delay of notice is obtained under Sec. 504.2(i), a copy of the search
warrant and the following notice must be mailed to the customer's last
known address:
Records or information concerning your transactions held by the
financial institution named in the attached search warrant were obtained
by this (office/agency/unit) on (date) for the following purpose: (state
purpose). You may have rights under the Right to Financial Privacy Act
of 1978.
(3) Search authorization signed by installation commanders or
military judges will not be used to gain access to financial records
from financial institutions in any State or territory of the United
States.
(4) Access to financial records maintained by military banking
contractors in oversea areas or by other financial institutions located
on DOD installations outside the United States, Puerto Rico, the
District of Columbia, Guam, American Samoa, or the Virgin Islands is
preferably obtained by customer consent.
(i) In cases where it would not be appropriate to obtain this
consent or such consent is refused and the financial institution is not
otherwise willing to provide access to its records, the law enforcement
activity may seek access by use of a search authorization. This
authorization must be prepared and issued per AR 27-10, Legal Services.
(ii) Information obtained under this paragraph should be properly
identified as financial information. It should be transferred only where
an official need-to-know exists. Failure to do so, however, does not
render the information inadmissable in courts-martial or other
proceedings.
(iii) Law enforcement activities seeking access to financial records
maintained by all other financial institutions overseas will comply with
local foreign statutes or procedures governing such access.
(e) Judicial subpoena. Judicial subpoenas--
(1) Are those subpoenas issued in connection with a pending judicial
proceeding.
(2) Include subpoenas issued under paragraph 115 of the Manual for
Courts-Martial and Article 46 of the Uniform Code of Military Justice.
The servicing staff judge advocate will be consulted on the availability
and use of judicial subpoenas. The notice and challenge provisions of 12
U.S.C. 3407 and 3410 will be followed.
(f) Formal written request. (1) A law enforcement office may
formally request financial records when the records are relevant to a
legitimate law enforcement inquiry. This request may be issued only if--
(i) The customer has declined to consent to the disclosure of his or
her records, or
(ii) Seeking consent from the customer would compromise or harmfully
delay a legitimate law enforcement inquiry.
(2) A formal written request will be in a format set forth in
appendix D and will--
(i) State that the request is issued under the Right to Financial
Privacy Act of 1978 and this regulation.
(ii) Described the specific records to be examined.
(iii) State that access is sought in connection with a legitimate
law enforcement inquiry.
(iv) Describe the nature of the inquiry.
[[Page 21]]
(v) Be signed by the head of the law enforcement office or a
designee (persons specified in Sec. 504.1(e)(2)).
(3) At the same time or before a formal written request is issued to
a financial institution, a copy of the request will be personally served
upon or mailed to the customer's last known address unless a delay of
customer notice has been obtained under Sec. 504.2(i). The notice to the
customer will be--
(i) In a format similar to appendix E.
(ii) Personally served at least 14 days or mailed at least 18 days
before the date on which access is sought.
(4) The official who signs the customer notice is designated to
receive any challenge from the customer.
(5) The customer will have 14 days to challenge a notice request
when personal service is made, and 18 days when service is by mail.
(6) The head of the law enforcement office initiating the formal
written request will set up procedures to insure that no access to
financial records is attempted before expiration of the above time
periods--
(i) While awaiting receipt of a potential customer challenge, or
(ii) While awaiting the filing of an application for an injunction
by the customer.
(7) Proper preparation of the formal written request and notice to
the customer requires preparation of motion papers and a statement
suitable for court filing by the customer. Accordingly, the law
enforcement office intending to initiate a formal written request will
coordinate preparation of the request, the notice, motion papers, and
sworn statement with the supporting staff judge advocate. These
documents are required by statute; their preparation cannot be waived.
(8) The supporting staff judge advocate is responsible for liaison
with the proper United States Attorney and United States District Court.
The requesting official will coordinate with the supporting staff judge
advocate to determine whether the customer has filed a motion to prevent
disclosure of the financial records within the prescribed time limits.
(9) The head of the law enforcement office (Sec. 504.2(f)(2)) will
certify in writing (see app. C) to the financial institution that such
office has complied with the requirements of 12 U.S.C. 3401 et seq.--
(i) When a customer fails to file a challenge to access to financial
records within the above time periods, or
(ii) When a challenge is adjudicated in favor of the law enforcement
office.
No access to any financial records will be made before such
certification is given.
(g) Emergency access. (1) In some cases, the requesting law
enforcement office may determine that a delay in obtaining access would
create an imminent danger of--
(i) Physical injury to a person,
(ii) Serious property damage, or
(iii) Flight to avoid prosecution.
Section 504.2(g)(2)(3) provides for emergency access in such cases of
imminent danger. (No other procedures in this regulation apply to such
emergency access.)
(2) When emergency access is made to financial records, the
requesting official (Sec. 504.1(e)(2)) will--
(i) Certify in writing (in a format similar to that in app. C) to
the financial institution that the provisions of 12 U.S.C. 3401 et seq.
have been complied with as a prerequisite to obtaining access.
(ii) File with the proper court a signed, sworn statement setting
forth the grounds for the emergency access within 5 days of obtaining
access to financial records.
(3) After filing of the signed, sworn statement, the official who
has obtained access to financial records under this paragraph will--
(i) Personally serve or mail to the customer a copy of the request
to the financial institution and the following notice, unless a delay of
notice has been obtained under Sec. 504.2(i):
Records concerning your transactions held by the financial
institution named in the attached request were obtained by (office/
agency/unit) under the Right to Financial Privacy Act of 1978 on (date)
for the following purpose: (state with reasonable detail the nature of
the law enforcement inquiry). Emergency access to such records was
obtained on the grounds that (state grounds).
[[Page 22]]
(ii) Insure that mailings under this section will be by certified or
registered mail to the last known address of the customer.
(4) The annual reporting requirements of Sec. 504.2(m) apply to any
request for access under this section.
(h) Release of information obtained from financial institutions--(1)
Records notice. Financial records, to include derived information,
obtained under 12 U.S.C. 3401 et seq. will be marked as follows:
This record was obtained pursuant to the Right to Financial Privacy
Act of 1978, 12 U.S.C. 3401 et seq., and may not be transferred to
another Federal agency or department outside DOD without prior
compliance with the transferring requirements of 12 U.S.C. 3412.
(2) Records transfer. (i) Financial records originally obtained
under this regulation will not be transferred to another agency or
department outside the DOD unless the transferring law enforcement
office certifies their relevance in writing. Certification will state
that there is reason to believe that the records are relevant to a
legitimate law enforcement inquiry within the jurisdiction of the
receiving agency or department. To support this certification, the
transferring office may require that the requesting agency submit
adequate justification for its request. File a copy of this
certification with a copy of the released records.
(ii) Unless a delay of customer notice has been obtained
(Sec. 504.2(i)), the transferring law enforcement office will, within 14
days, personally serve or mail the following to the customer at his or
her last known address--
(A) A copy of the certification made according to
Sec. 504.2(h)(2)(i) and
(B) The following notice, which will state the nature of the law
enforcement inquiry with reasonable detail:
Copies of, or information contained in, your financial records
lawfully in possession of the Department of the Army have been furnished
to (state the receiving agency or department) pursuant to the Right to
Financial Privacy Act of 1978 for (state the purpose). If you believe
that this transfer has not been made to further a legitimate law
enforcement inquiry, you may have legal rights under the Financial
Privacy Act of 1978 or the Privacy Act of 1974.
(iii) If a request for release of information is from a Federal
agency authorized to conduct foreign intelligence or foreign
counterintelligence activities (Executive Order 12036) and is for
puposes of conducting such activities by these agencies, the information
will be released without notifying the customer, unless permission to
provide notification is given in writing by the requesting agency.
(iv) Financial information obtained before the effective date of the
Financial Privacy Act of 1978 (10 March 1978) may continue to be
provided to other agencies according to existing procedures, to include
applicable Privacy Act System Notices published in AR 340-21 series.
(3) Precautionary measures. Whenever financial data obtained under
this regulation is incorporated into a report of investigation or other
correspondence, precautions must be taken to insure that--
(i) The report or correspondence is not is not distributed outside
of DOD except in compliance with paragraph (h)(2)(ii)(B) of this
section.
(ii) The report or other correspondence contains the following
warning restriction on the first page or cover:
Some of the information contained herein (cite specific paragraphs)
is financial record information which was obtained pursuant to the Right
to Financial Privacy Act of 1978, 12 U.S.C. 3401 et seq. This
information may not be released to another Federal agency or department
outside the DOD without compliance with the specific requirements of 12
U.S.C. 3412 and AR 190-6.
(i) Delay of customer notice procedures--(1) Length of delay. The
customer notice required by formal written request (Sec. 504.2(f)(3)),
emergency access (Sec. 504.2(g)(3)), and release of information
(Sec. 504.2(h)(2)(iii)) may be delayed for successive periods of 90
days. The notice required for search warrant (Sec. 504.2(d)(2)) may be
delayed for one period of 180 days and successive periods of 90 days.
(2) Conditions for delay. A delay of notice may be granted only by a
court of competent jurisdiction. This will be done only when not
granting a delay in serving the notice would result in--
(i) Endangering the life or physical safety of any person.
[[Page 23]]
(ii) Flight from prosecution.
(iii) Destruction of or tampering with evidence.
(iv) Intimidation of potential witnesses.
(v) Otherwise seriously jeopardizing an investigation or official
proceeding or unduly delaying a trial or ongoing official proceeding to
the same degree as the circumstances in Sec. 504.2(i)(2)(ii) through
(iv).
(3) Coordination. When a delay of notice is appropriate, the law
enforcement office involved will consult with the supporting staff judge
advocate to obtain such a delay. Applications for delays of notice
should contain reasonable detail.
(4) After delay expiration. Upon the expiration of a delay of notice
under above and required by--
(i) Section 504.2(d)(1), the law enforcement office obtaining
financial records will mail to the customer a copy of the search warrant
and the following notice.
Records or information concerning your transactions held by the
financial institution named in the attached search warrant were obtained
by this (agency or office) on (date). Notification was delayed beyond
the statutory 90-day delay period pursuant to a determination by the
court that such notice would seriously jeopardize an investigation
concerning (state with reasonable detail). You may have rights under the
Right to Financial Privacy Act of 1978.
(ii) Section 504.2(f)(3), the law enforcement office obtaining
financial records will serve personally or mail to the customer a copy
of the process or request and the following notice:
Records or information concerning your transactions which are held
by the financial institution named in the attached process or request
were supplied to or requested by the government authority named in the
process or request on (date). Notification was withheld pursuant to a
determination by the (title of the court so ordering) under the Right to
Financial Privacy Act of 1978 that such notice might (state reason). The
purpose of the investigation or official proceeding was (state purpose
with reasonable detail).
(iii) Section 504.2(g)(3), the law enforcement office obtaining
financial records will serve personally or mail to the customer a copy
of the request and the notice required by Sec. 504.2(g)(3).
(iv) Section 504.2(h)(2), the law enforcement office transferring
financial records will serve personally or mail to the customer the
notice required by Sec. 504.2(f)(3). If the law enforcement office was
responsible for obtaining the court order authoriziang the delay, such
office shall also serve personally or by mail to the customer the notice
required in Sec. 504.2(f)(3).
(5) Annual reports. The annual reporting requirements of
Sec. 504.2(m) apply to delays of notice sought or granted under this
paragraph.
(j) Foreign intelligence and foreign counterintelligence activities.
(1) Except as indicated below, nothing in this regulation applies to
requests for financial information in connection with authorized foreign
intelligence and foreign counterintelligence activities as defined in
Executive Order 12036. Appropriate foreign intelligence and
counterintelligence directives should be consulted in these instances.
(2) However, to comply with the Financial Privacy Act of 1978, the
following guidance will be followed for such requests. When a request
for financial records is made--
(i) A military intelligence group commander, the chief of an
investigative control office, or the Commanding General (or Deputy CG),
US Army Intelligence and Security Command, will certify to the financial
institution that the requesting activity has complied with the
provisions of 12 U.S.C. 3403(b).
(ii) The requesting official will notify the financial institution
from which records are sought that 12 U.S.C. 3414(a)(3) prohibits
disclosure to any person by the institution, its agents, or employees
that financial records have been sought or obtained.
(3) The annual reporting requirements shown in Sec. 504.2(m) apply
to any request for access under this section.
(k) Certification. A certificate of compliance with the Right of
Financial Privacy Act of 1978 (app. C) will be provided to the financial
institution as a prequisite to obtaining access to financial records
under the following access procedures:
(1) Customer consent (Sec. 504.2(b)).
(2) Search warrant (Sec. 504.2(d)).
(3) Judicial subpoena (Sec. 504.2(e)).
(4) Formal written request (Sec. 504.2(f)).
[[Page 24]]
(5) Emergency access (Sec. 504.2(g)).
(6) Foreign intelligence and foreign counterintelligence activities
(Sec. 504.2 (j)).
(l) Penalties. Obtaining or disclosing financial records or
financial information on a customer from a financial institution in
violation of the Act or this regulation may subject the Army to payment
of civil penalties, actual damages, punitive damages as the court may
allow, and cost with reasonable attorney fees. Military and civilian
personnel who willfully or intentionally violate the Act or this
regulation may be subject to disciplinary action.
(m) Right to Financial Privacy Act of 1978 Annual Report (RCS DD-
COMP(A)1538). (1) Major Army commanders will submit this report to
HQDA(DAPE-HRE) concerning requests for financial information from
financial institutions. Reports are to include all queries requested or
information obtained under the provisions of this regulation by
subordinate Army law enforcement offices (as defined in
Sec. 504.1(c)(6)). Negative reports will be submitted.
(2) This report is to arrive at HQDA(DAPE-HRE), WASH, DC 20310, not
later than 1 February following the calendar year reported.
(3) The annual report will contain the number of--
(i) Requests for access to financial institutions, specifying the
types of access and any other information deemed relevant or useful.
(ii) Customer challenges to access and whether they were successful.
(iii) Transfers to agencies outside of the DOD of information
obtained under this regulation.
(iv) Customer challenges to the transfer of information and whether
they were successful.
(v) Applications for delay of notice, the number granted, and the
names of the officials requesting such delays.
(vi) Delay of notice extensions sought and the number granted.
(vii) Refusals by financial institutions to grant access, by
category of authorization, such as customer consent or formal written
request.
(4) A consolidated Army report will be submitted by HQDA(DAPE-HRE)
to the Defense Privacy Board, Office of the Deputy Assistant Secretary
of Defense (Administration), by 15 February each year.
Appendix A to Part 504--Request for Basic Identifying Account Data--
Sample Format
(Official Letterhead)
(Date)__________________________________________________________________
Mr./Mrs. ------------,
Chief Teller (as appropriate), First National Bank, Little Rock, AR
72203.
Dear Mr./Mrs. ------------: In connection with a legitimate law
enforcement inquiry and pursuant to section 3414(g) of the Right to
Financial Privacy Act of 1978, section 3401 et seq., Title 12, United
States Code, you are requested to provide the following account
information: (name, address, account number, and type of account of any
customer or ascertainable group of customers associated with a certain
financial transaction or class of financial transactions as set forth in
Sec. 504.1(f)).
I hereby certify, pursuant to section 3403(b) of the Right to
Financial Privacy Act of 1978, that the provisions of the Act have been
complied with as to this request for account information.
(Official Signature Block)______________________________________________
Under section 3417(c) of the Act, good faith reliance upon this
certification relieves your institution and its employees and agents of
any possible liability to the subject in connection with the disclosure
of the requested financial records.
Appendix B to Part 504--Customer Consent and Authorization for Access--
Sample Format
Pursuant to section 3404(a) of the Right to Financial Privacy Act of
1978, I, (name of customer), having read the explanation of my rights on
the reverse side, hereby authorize the (name and address of financial
institution) to disclose these financial records: (list of particular
financial records) to (Army law enforcement office) for the following
purpose(s): (specify the purpose(s)).
I understand that this authorization may be revoked by me in writing
at any time before my records, as described above, are disclosed, and
that this authorization is valid for no more than 3 months from the date
of my signature.
Date:___________________________________________________________________
Signature:______________________________________________________________
(Typed name)
(Mailing address of customer)
[[Page 25]]
Statement of Customer Rights Under the Right to Financial Privacy Act of
1978
Federal law protects the privacy of your financial records. Before
banks, savings and loan associations, credit unions, credit card
issuers, or other financial institutions may give financial information
about you to a Federal agency, certain procedures must be followed.
Consent to Financial Records
You may be asked to consent to the financial institution making your
financial records available to the Government. You may withhold your
consent, and your consent is not required as a condition of doing
business with any financial institution. If you give your consent, it
can be revoked in writing at any time before your records are disclosed.
Futhermore, any consent you give is effective for only 3 months and your
financial institution must keep a record of the instances in which it
discloses your financial information.
Without Your Consent
Without your consent, a Federal agency that wants to see your
financial records may do so ordinarily only by means of a lawful
subpoena, summons, formal written request, or search warrant for that
purpose. Generally, the Federal agency must give you advance notice of
its request for your records explaining why the information is being
sought and telling you how to object in court. The Federal agency must
also send you copies of court documents to be prepared by you with
instructions for filling them out. While these procedures will be kept
as simple as possible, you may want to consult an attorney before making
a challenge to a Federal agency's request.
Exceptions
In some circumstances, a Federal agency may obtain financial
information about you without advance notice or your consent. In most of
these cases, the Federal agency will be required to go to court for
permission to obtain your records without giving you notice beforehand.
In these instances, the court will make the Government show that its
investigation and request for your records are proper. When the reason
for the delay of notice no longer exists, you will usually be notified
that your records were obtained.
Transfer of Information
Generally, a Federal agency that obtains your financial records is
prohibited from transferring them to another Federal agency unless it
certifies in writing the transfer is proper and sends a notice to you
that your records have been sent to another agency.
Penalties
If the Federal agency or financial institution violates the Right to
Financial Privacy Act, you may sue for damages or seek compliance with
the law. If you win, you may be repaid your attorney's fee and costs.
Additional Information
If you have any questions about your rights under this law, or about
how to consent to release your financial records, please call the
official whose name and telephone number appears below:
________________________________________________________________________
(Last Name, First Name, Middle Initial) Title (Area Code) (Telephone
Number)
________________________________________________________________________
(Component activity, address)
Appendix C to Part 504--Certificate of Compliance With the Right to
Financial Privacy Act of 1978--Sample Format
(Official Letterhead)
Mr./Mrs. ------------,
Manager, Army Federal Credit Union, Fort Ord, CA 93941.
Dear Mr./Mrs. ------------: I certify, pursuant to section 3403(b)
of the Right to Financial Privacy Act of 1978, section 3401 et seq.,
Title 12, United States Code, that the applicable provisions of that
statute have been complied with as to the (customer's consent, search
warrant or judicial subpoena, formal written request, emergency access,
as applicable) presented on (date), for the following financial records
of (customer's name):
________________________________________________________________________
(Describe the specific records)
(Official Signature Block)______________________________________________
Pursuant to section 3417(c) of the Right to Financial Privacy Act of
1978, good faith reliance upon this certificate relieves your
institution and its employees and agents of any possible liability to
the customer in connection with the disclosure of these financial
records.
Appendix D to Part 504--Formal Written Request for Access--Sample Format
(Official Letterhead)
(Date)__________________________________________________________________
Mr./Mrs. ------------,
President (as appropriate), City National Bank and Trust Company,
Altoona, PA 16602.
Dear Mr./Mrs. ------------: In connection with a legitimate law
enforcement inquiry and pursuant to section 3402(5) and section 3408 of
the Right to Financial Privacy Act of 1978, section 3401 et seq., Title
12, United States Code, and Army Regulation 190-6, you
[[Page 26]]
are requested to provide the following account information pertaining to
(identify customer);
________________________________________________________________________
(Describe the specific records to be examined)
The Army has no authority to issue an administrative summons or
subpoena for access to these financial records which are required for
(describe the nature or purpose of the inquiry).
A copy of this request was (personally served upon or mailed to) the
subject on (date) who has (10 or 14) days in which to challenge this
request by filing an application in an appropriate United States
district court if the subject desires to do so.
Upon expiration of the above mentioned time period and in the
absence of any filing or challenge by the subject, you will be furnished
a certification certifying in writing that the applicable provisions of
the Act have been complied with prior to obtaining the requested
records. Upon your receipt of a Certificate of Compliance with the Right
to Financial Privacy Act of 1978, you will be relieved of any possible
liability to the subject in connection with the disclosure of the
requested financial records.
(Official Signature Block)______________________________________________
Appendix E to Part 504--Customer Notice of Formal Written Request--
Sample Format
(Official Letterhead)
(Date)__________________________________________________________________
Mr./Ms. ------------,
1500 N. Main Street, Washington, DC 20314.
Dear Mr./Ms. ------------: Information or records concerning your
transactions held by the financial institution named in the attached
request are being sought by the (agency/department) in accordance with
the Right to Financial Privacy Act of 1978, section 3401 et seq., Title
12, United States Code, and Army Regulation 190-6, for the following
purpose(s):
________________________________________________________________________
(List the purpose(s))
If you desire that such records or information not be made
available, you must do the following:
a. Fill out the accompanying motion paper and sworn statement or
write one of your own--
(1) Stating that you are the customer whose records are being
requested by the Government.
(2) Giving the reasons you believe that the records are not relevant
or any other legal basis for objecting to the release of the records.
b. File the motion and statement by mailing or delivering them to
the clerk of any one of the following United States District Courts:
________________________________________________________________________
(List applicable courts)
c. Mail or deliver a copy of your motion and statement to the
requesting authority: (give title and address).
d. Be prepared to come to court and present your position in further
detail.
You do not need to have a lawyer, although you may wish to employ
one to represent you and protect your rights.
If you do not follow the above procedures, upon the expiration of
(10 days from the date of personal service) (14 days from the date of
mailing) of this notice, the records or information requested therein
may be made available.
These records may be transferred to other Government authorities for
legitimate law enforcement inquiries, in which event you will be
notified after the transfer if such transfer is made.
3 Inclosures (see para------)
(Signature)_____________________________________________________________