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420

Interagency Transfers of Financial Records

Financial records may be transferred to another federal agency under 12 U.S.C. § 3412 only if an official of the transferring agency certifies in writing that there is reason to believe that the records are relevant to a legitimate law enforcement inquiry of the receiving agency. In addition, within 14 days after any transfer, the customer must be notified of the transfer unless the government has obtained, in connection with its original access or at the time of the transfer, a court order delaying notice under the provisions of 12 U.S.C. § 3409.

Transfer restrictions do not apply to intra-departmental transfers (i.e., the FBI or DEA may transfer financial records to United States Attorneys' offices or to the Department's litigating Divisions without restriction). Also exempt from the Act are transfers between any agency or department and the Attorney General, if the agency certifies that: (1) there is reason to believe that the records are relevant to a criminal violation, and (2) the records were obtained in the exercise of its supervisory functions. 12 U.S.C. § 3412(f)(1). The Attorney General may only use the records to investigate or prosecute criminal violations, and must return them to the agency when the investigation or prosecution is completed. 12 U.S.C. § 3412(f)(1).

In addition, post-notice is only required for transfers between federal departments; the Act does not restrict transfers of financial records from state or local government agencies to federal agencies or from federal to state agencies. Neither does the Act cover transfers of financial records between a federal agency and an agency of a foreign government. Also note that 12 U.S.C. § 3413(g) expressly excepts from post-notice the transfer of account identification information obtained pursuant to that subsection.

Please note that the transfer restrictions of 12 U.S.C. § 3412 do not apply to records obtained pursuant to any of the Act's exceptions, including § 3413(a) [records not identifiable with a particular customer]; § 3413(c) [records required to be reported by statute]; § 3413(e) [records obtained pursuant to the Federal Rules of Civil or Criminal Procedure]; § 3413(f) [records obtained pursuant to an administrative subpoena issued by an administrative law judge]; § 3413(g) (account identification information] and § 3413(i) [grand jury subpoenaed records].

Practice Note: Caution is required in connection with transfers between state and federal agencies as the Congress clearly intended that state and local agencies not be used as sub-agents of federal agencies to circumvent the restrictions of the Act. Transfers that would create an appearance of impropriety should be avoided. If, for example, a State agency offers financial records to a federal agency without being requested to do so or if records previously obtained by a state agency are provided in response to a federal inquiry, the transfer does not create an appearance of impropriety. If, however, financial records obtained by a state subsequent to a federal inquiry are transferred to the requesting federal agency, there would be an appearance of abuse, if the timing and circumstances of the transfer were such as to suggest that state officials were merely acting as sub-agents of federal officials for purposes of circumventing the Act.

Note that the Act is interpreted not to require a second post-notice to the customer when records are re-transferred from the transferee to the original transferring agency.

    Suggested forms: Form DOJ-474 certification for transferring records and Form DOJ-476 customer notice of transfer.