Responding to Federal and State Subpoenas

Our members depend on our services not only for ready access to their deposits, but also to maintain the security of their nonpublic information. This includes protection from the prying eyes of the federal government. This protection is not absolute but does require that requesting federal agencies pursue requests it in a certain fashion.

The Right to Financial Privacy Act (RFPA) covers these types of requests, but note that it does not cover state or local subpoenas (look to state law sections for these requests). The RFPA applies to requests from a federal government authority for any “financial record” defined as “an original, a copy of, or information known to have been derived from any record held by a financial institution pertaining to a customer’s relationship with the financial institution.” To properly request this information, the requesting agency must:

• Provide our member with notice before any disclosure by the credit union,
• Inform the member that the member has a right to challenge release for any financial records, AND
• Provide the credit union with a certificate of compliance that accompanies the request.

A certificate of compliance will indicate that the government agency has complied with the RFPA, indicate the individual whose records are being requested, provide information about the agency and official requesting the record, and add a statement that reliance upon the certificate of compliance relieves the credit union and its employees or agents from any possible liability regarding the disclosure.

A copy of this notice can be found here.

There are a few exceptions to the RFPA requirements. A list of those requirements can be found in Section 3413 of the RFPA here.  

Similarly, a federal agency need not follow the RFPA when requesting follow-up information on a previously filed Suspicious Activity Report. The Bank Secrecy Act and applicable NCUA regulations mandate that credit unions provide this information without any further due process upon request.

What about state subpoenas?

Depending on your state, there may be special procedures that a requesting agency must follow in order to properly request information. 

Texas

In Texas, there are special subpoena rules that apply only to requests made to financial institutions for member records. These rules are found in the Texas Finance Code, Section 59.006. A credit union is only required to produce a record request if:

1. The request is received no later than the 24th day before the date that compliance with the record request is required,
2. The requesting party pays the credit union’s reasonable costs of complying with the record request, including costs of reproduction, postage, research, delivery, and attorneys' fees, or posts a cost bond in an amount estimated by the financial institution to cover those costs BEFORE the credit union complies with the request, and
3. If the member is not a party to the proceeding in which the request is issued, that the requesting party:
1. Give notice stating the member’s rights to the credit union and the affected members according to the Texas Rules of Civil Procedure,
2. File a certificate of service indicating that the customer has been mailed or served with the notice and a copy of the record request as required by this subsection with the tribunal and the financial institution, and
3. Request the customer's written consent authorizing the financial institution to comply with the request.

Also, when requesting a record for a member not party to a lawsuit, if the member does not consent to a dissemination of records, the member may have other rights that further protect that information, such as the right to a protected inspection through the court to determine relevance and limitations before any disclosure.

The credit union may also not be compelled to produce records if the 24-day notice is not met or if the member’s consent is not obtained within 15 days of the initial request (when the member is not a party to the proceeding).

State agencies are not required to file a subpoena to request financial records during the investigation of a of the abuse, neglect, or exploitation of an elderly person or person with a disability. This exception to subpoena is found under Section 48.154 of the Human Resources Code. ( https://statutes.capitol.texas.gov/Docs/HR/htm/HR.48.htm#48.154)

Oklahoma

In Oklahoma, subpoena of financial records is covered by Title 6, Chapter 6, known as the Financial Privacy Act.

Ordinarily, financial institutions are prohibited from giving, releasing, or disclosing any financial record to any government authority unless:

1. It has written consent from the customer for the specific record requested; or
2. It has been served with a subpoena.

A court may issue a subpoena for records by serving the member personally or at the last-known address on or before the date the subpoena is filed on the credit union.

The member has 14 days to challenge the subpoena for any or all of the following reasons:

1. That the financial record sought is incompetent, irrelevant, or immaterial for the purpose or purposes for which it is sought;
2. That the release of the financial record would cause an unreasonable burden or hardship under the circumstances;
3. That the government authority seeking said financial record is attempting to harass the customer; or
4. That there is no merit in the purpose or purposes for which said financial record is sought.

If the member moves to quash the subpoena, the member may request a copy of the records sought from the credit union.

These rights only apply to a member who is not party to the litigation. These rights do not apply to proceedings before a multi-county grand jury, and the court may order that the member not be notified for these kinds of situations.

Per section 2206 of Chapter 6, any government authority requesting production must pay the credit union upfront for the request at a reasonable fee for those records. A list of those reasonable fees can be found here.

Search warrants for criminal investigations are covered separately. These kinds of requests require that the government authority serve notice on the person in charge of the financial institution, as designated by the institution, and only during normal business hours. The financial institution must provide those records within ten (10) days. (https://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=77105)

Arkansas

Arkansas does not have a special procedure for serving subpoenas on financial institutions. The state does permit the attorney general to request financial records for purposes of conducting an investigation into an abused, neglected, or exploited adult without subpoena, however. (Arkansas Code 5-28-107). The credit union may challenge the request, but the attorney general may file suit to enforce in response.