The SAR and the Subpoena

Issue/Inquiry

When a subpoena requires any and all documentation related to an account to be provided, should the Bank provide copies of any SARs filed as well?

Response Summary

Generally, the existence of a SAR may not be revealed, except when the disclosure is required by FinCEN or an appropriate law enforcement or federal banking agency.

Response Detail

The circumstances under which a bank may reveal the existence of a Suspicious Activity Report (“SAR”) are limited.

No bank, and no director, officer, employee, or agent of a bank that reports a suspicious transaction may notify any person involved in the transaction that the transaction has been reported. A SAR and any information that would reveal the existence of a SAR are confidential, except as is necessary to fulfill BSA obligations and responsibilities.

Any person subpoenaed or otherwise requested to disclose a SAR or the information contained in a SAR, except when such disclosure is requested by FinCEN or an appropriate law enforcement or federal banking agency, shall decline to produce the SAR or to provide any information that would disclose that a SAR has been prepared, citing 31 CFR 1020.320(e) and 31 USC 5318(g)(2)(A)(i). Examples of agencies to which a SAR or the information contained therein could be provided include: the criminal investigative services of the armed forces; the Bureau of Alcohol, Tobacco, and Firearms; an attorney general, district attorney, or state’s attorney at the state or local level; the Drug Enforcement Administration; the Federal Bureau of Investigation; the Internal Revenue Service or tax enforcement agencies at the state level; the Office of Foreign Assets Control; a state or local police department; a United States Attorney’s Office; Immigration and Customs Enforcement; the U.S. Postal Inspection Service; and the U.S. Secret Service.

FinCEN and a bank’s federal banking agency should be notified of any such request and of the bank’s response, according to FinCEN, Bank Secrecy Act Anti-Money Laundering Examination Manual, Suspicious Activity Reporting – Overview.

In the case of a subpoena received in a civil action, the Bank would respond to it as it would any such subpoena, except that it would not provide copies of any SARs that had been filed or any information indicating that a SAR had been prepared. Information related to the account which may also have been reported in the SAR but which is available independently of the SAR, such as account statements or signature cards, may be provided as long as the existence of the SAR is not revealed.

If the subpoena specifically requested that the Bank disclose a SAR or the information contained in the SAR, the Bank would decline to provide the SAR or any information indicating that an SAR had been prepared. It would notify FinCEN and the federal agency regulating it of the request and its response.

This entry was posted on Tuesday, February 20th, 2018 at 6:00 am.