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442

Compliance Checklist

First determine whether the records sought are covered by the Act [i.e., do they pertain to an"account" (checking, share, savings, or loan account) of a "customer" (living natural person or partner ship of five or less partners) obtained from a "financial institution" (bank, savings and loan, credit union, mortgage bank, finance company, or credit card issuer) where the "customer" maintains his/her account in his/her true name?].

If the records are covered by the Act, access procedures will vary depending upon the form of process utilized. Following are the major steps to be observed for the seven access mechanisms most often employed by Department of Justice personnel to obtain covered records:

  1. Customer Authorization (12 U.S.C. § 3404)

    1. Obtain execution by customer of authorization (Form DOJ-462) and execute certificate of compliance (Form DOJ-461).

    2. Serve upon or mail to financial institution (a) the authorization, (b) certificate of compliance, and (c) reimbursement materials (Form OBD 211 and Form R).

    3. Obtain records within 90 days and use pursuant to general transfer restrictions.**

    4. Process reimbursement and maintain data necessary for annual statistical report to Congress.

  2. Administrative Subpoena, Trial Subpoena and Formal Written Request (12 U.S.C. §§ 3405, 3407, 3408) does not apply to trial subpoenas for records of where government and customer are parties to litigation]

    1. Execute subpoena or formal written request (Form DOJ-4 6 3).

    2. Either:

      1. Perfect service of the subpoena or request to financial institution with copy of subpoena or request plus: (1) customer notice (Form DOJ-464), (2) blank motion form (Form DOJ-465), and (3) blank sworn statement form (Form DOJ-466) to customer.

      2. Wait 14 days from date of personal service or 18 days from date of mailing to customer, or until court has dismissed any challenge filed by the customer.

      3. Execute and serve upon or mail to financial institution a certificate of compliance (Form DOJ-461) and reimbursement materials (Form OBD 211 and Form R).

      4. Obtain records and use pursuant to general transfer restrictions.**

      5. If records are obtained over a customer challenge, notify customer if decision is made not to prosecute (Form DOJ-473), or make necessary certification to court if no prosecutorial decision has been made within 180 days of access (see 12 U.S.C. § 3410(d)).

      OR

      1. obtain court order delaying notice (Forms DOJ 467 and 468).

      2. Serve upon or mail to financial institution

        1. the subpoena or request,

        2. the court order,

        3. a certificate of compliance (Form DOJ-461), and

        4. reimbursement materials (Form OBD 211 and Form R).

        5. Obtain records and use for the specific purposes listed in the authorization (See 12 U.S.C. § 3403(4)) and/or pursuant to general transfer restrictions.**

        6. Upon expiration of court-ordered delay, serve upon or mail to customer the notice of access and delay (Form DOJ-471).

    3. Process reimbursement and maintain data necessary for annual statistical report to Congress.

  3. Search Warrant (12 U.S.C § 3406)

    1. Obtain issuance of search warrant.

    2. Serve: (a) warrant, (b) certificate of compliance (Form DOJ-461), and (c) reimbursement materials (Form OBD- 211 and Form R) upon financial institution and secure records.

    3. Use records pursuant to general transfer restrictions.**

    4. Within 90 days of execution of warrant, either secure court order delaying notice.(Forms DOJ-467 and 468) or notify customer of execution of the warrant (Form DOJ-469).

      If a Court order is obtained delaying notice, use Form DOJ-470 for customer notice upon expiration of period of delay.

    5. Process reimbursement and maintain data necessary for annual statistical report to Congress.

  4. Grand Jury Subpoena (12 U.S.C. §§ 3413(i), 3420).

    1. Obtain issuance of subpoena.

    2. Serve upon or mail to financial institution with reimbursement materials (Form OBD-211 and Form R).

    3. If needed, obtain a court order to prevent the institution from notifying the customer that the records have been subpoenaed.

    4. Log in subpoenaed records.

    5. Use of records restricted by Rule 6(e), F.R.Cr.P.

    6. Process reimbursement and maintain data necessary for annual statistical report to DOJ.

  5. Basic Identifying Account Information Exception (12 U.S.C. §  3413(g)).

    1. Either: (a) execute formal written request for account information (Form DOJ-475, which has built-in certificate of compliance)

      OR

      (b) execute subpoena or other process and certificate of compliance (Form DOJ-461)

    2. Serve upon financial institution and secure information.

  6. Non-Target Exception (12 U.S.C. § 3413(h)(1)(A~))

    (if records of non-target are sought]

    1. Execute certificate of compliance (Form DOJ-461) and legal process, if desired.

      1. Serve on financial institution and obtain information.

      2. Records may be used only for purpose for which obtained and transferred only if to be used against financial institution or target other than subject of records.

    2. Emergency Access (12 U.S.C. § 3414(b))

      1. Obtain execution of certificate of compliance (Form DOJ-461) by supervisory official designated by head of agency [may be accompanied by legal process if desired].

      2. Serve upon financial institution, obtain records and use per general transfer restrictions.**

      3. Within five days of access, file sworn statement with court justifying emergency access, AND, either:

        1. notify customer of access (Form DOJ-472), OR

        2. obtain court order delaying notice (Forms DOJ-467 and 468)

        3. Follow up as practicable with reimbursement materials (Forms OBD- 211 and Form R).

        4. Process reimbursement and maintain data necessary for annual statistical report to Congress.

        5. If court order is obtained delaying notice, notify customer at expiration of period of delay (Form DOJ-471).

          **General Transfer Restrictions: May transfer records freely within Department of Justice (DEA, FBI, Crm Div, USAs, etc.) and to state, local or foreign governments (subject to Privacy Act of 1974) but must certify (Form DOJ-474) and give customer notice of transfer within 14 days (Form DOJ-476) if transfer is made to non-DOJ federal agency or department.