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404

Records Covered

A "financial record" is any original, copy of, or "information known to be derived from" a record pertaining to a customer's relationship with a financial institution. 12 U.S.C. § 3401(2). Records or information not identifiable with a particular customer are excluded from the Act's protection by 12 U.S.C. § 3413(a). Requests for basic account information are also excluded from the Act's protection by 12 U.S.C. § 3413(g). The Act does not protect records of a customer that appear in the account of a third person, such as check endorsements or items drawn by an individual and deposited into the account of a corporation if the item is obtained from the corporation's records. See H.R. Rep. No. 95-1383 at 49, 7 U.S. Code Cong. and Ad. News, 95th Cong., 2nd Sess., at 9321.

Financial information relating to accounts of individuals and partnerships of five or fewer partners is protected by the Act if it meets the following tests:

  1. It must be held by a specific financial institution; and

  2. It must pertain to an individual's (or covered partnership's) utilization of the services of that institution; and

  3. It must relate to an account maintained by that individual (or covered partnership) at that institution; and

  4. It must relate to an account maintained in that individual's (or covered partnership's) true name.

Applying the four tests, the following items are not covered by the Act: forged or counterfeit financial instruments; records relating to an account established under a fictitious name; financial records in the possession of an institution other than the institution at which the person maintains an account, such as a check or money order cashed for a non-customer; bank surveillance photographs; contents of a safe deposit box sought pursuant to a search warrant; or records pertaining to functions that do not involve an account relationship, such as sales of stock and other activities that do not constitute routine banking services.

The four tests were developed by relying on the Act's legislative history which explains that the definition of "financial records" and "customer", "taken together, are intended to preclude application of the bill to anyone other than the person to whose account information the government seeks access." H.R. Rep. No. 95-1383 at 49, 7 U.S. Code Cong. & Ad. News, 95th Cong., 2nd Sess., at 9321.

The word "account" is not defined in the Act. Title IX of the Financial Institution Regulatory and Interest Rate Control Act of 1978 defines "account" as follows:

    (2) the term 'account' means a demand deposit, savings deposit, or other asset account (other than an occasional or incidental credit balance in an open end credit plan as defined in section 103(i) of this Act), as described in regulations of the Board, established primarily for personal, family, or household purposes, but such term does not include an account held by a financial institution pursuant to a bona fide trust agreement... Emphasis added.] Public Law 95-630, § 903(2), 15 U.S.C. §  169a(2).

    This definition of "account" is consistent with the meaning normally accorded the word in general legal encyclopedias.

    "Account" is a word of ordinary and common acceptance in legal terminology and may be defined as an unsettled claim or demand by one person against another, based upon a transaction creating a debtor and creditor relation between the parties... [Emphasis added.] 1 Am Jur 2d, "Accounts and Accounting," p.357

Use of the term "account" in the definition of "customer" therefore, was not intended to encompass such services as renting of a safe deposit box, sales of stock, provision of computer services, and other activities that do not of necessity involve a debtor-creditor relationship. Rather, the word "account", when used in connection with financial institutions, is properly limited to its plain meaning as encompassing only checking, savings, and loan services.

In summary, application of the definitions and tests set out above limits coverage of the Act to a narrow class of records. Determining whether the needed records or information are covered by the Act, therefore, is an essential threshold issue in securing access to financial records.