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416. Government Response to Customer Challenge

If the customer complies with the above requirements, the government then bears the burden of proving that it is entitled to access. 12 U.S.C. §  3410(b). To do this, the government must show that there is reason to believe that the records sought are relevant to a legitimate law enforcement inquiry (i.e., a lawful investigation or official proceeding inquiring into a violation of any criminal or civil statute or regulation, rule or order) within the jurisdiction of the investigating agency. See McGloshen v. United States Department of Agriculture, 480 F. Supp. 247 (W.D. Ky. 1979) (to prevail against a customer challenge, the government must show only "a demonstrable reason to believe that the law enforcement inquiry is legitimate and a reasonable belief that the records sought are relevant to that inquiry."). The test of relevance is broad and should encompass anything that may be used as evidence or that may lead to evidence. The inquiry must be legitimate; it cannot be pursued to harass the subject or for political purposes. (See, e.g., 124 Cong. Rec. H 11737 (daily ed. October 5, 1978) (remarks of Rep. Pattison, "An investigation conducted solely for purposes of political harassment or intimidation or otherwise in bad faith is not legitimate... [but] ... We do not want judges standing over prosecutors telling them when they have enough evidence to begin an investigation."). If the customer meets this burden, a summons or subpoena will be quashed and a formal written request enjoined. Note that the court is expressly empowered to find for the customer if there has not been "substantial compliance" with the Act. See 12 U.S.C. § 3410(c); but see H.R. Rep. No. 95-1383 at 224, 7 U.S. Code - Cong. & Ad. News, 95th Cong., 2nd Sess., at 9533 ("This language is intended only to ensure that minor technical violations of the bill are not the basis for denying access."). Section 3410(b) of the Act, requires that customer challenges be decided by the court within seven calendar days of the filing of the government's response; through this provision, Congress has recognized the need for expeditious resolution of customer challenges. This requirement should not be read as authorizing access during the pendency of a challenge proceeding.

Updated May 20, 2015