SARs and Legal Process

Issue/Inquiry

When the Bank receives a subpoena or other legal process requiring it to provide any and all documentation related to an account, should it also provide copies of any SARs filed?

Response Summary

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

According to FFIEC guidance, the circumstances under which a bank may reveal the existence of a Suspicious Activity Report (“SAR”) are limited.

Under the rules of the Financial Crimes Enforcement Network (“FinCEN”), no bank or director, officer, employee, or agent of a bank that reports a suspicious transaction may notify any person involved in the transaction that such has been reported. A SAR and any information that would reveal the existence of a SAR are confidential, except as is necessary to fulfill Bank Secrecy Act obligations and responsibilities. Any person subpoenaed or otherwise requested to disclose a SAR or the information contained in a SAR must decline to produce the SAR or provide any information disclosing that a SAR has been prepared, unless such disclosure is requested by FinCEN or an appropriate law enforcement or federal banking agency. The Bank’s response should cite 31 CFR 1020.320(e) and 31 USC 5318(g)(2)(A)(i) as its legal basis. FinCEN and a bank’s federal banking agency should be notified of any such request and the bank’s response.

Examples of law enforcement agencies to which a SAR or the information contained in it could be provided include the following:

• Criminal investigative services of the armed forces
• Bureau of Alcohol, Tobacco, and Firearms
• An attorney general, district attorney, or state’s attorney at the state or local level
• Federal Bureau of Investigation
• Internal Revenue Service or tax enforcement authorities at the state level
• Office of Foreign Assets Control
• State or local police department
• A United States Attorney’s Office
• Immigration and Customs Enforcement
• U. S. Postal Inspection Service
• U. S. Secret ServiceExamples of law enforcement agencies to which a SAR or the information contained therein could be provided include: the criminal investigative services of the armed forces;

FFIEC, 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 information indicating that a SAR had been prepared. Information related to the account which may also have been reported in the SAR, but is available independently of the SAR, such as account statements or signature cards, may be provided, so 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 a SAR had been prepared, making the appropriate legal and regulatory citation. It would notify FinCEN and the federal agency regulating it of the request and its response.

This response is for informational purposes only and is not intended for legal guidance.

This entry was posted on Monday, March 2nd, 2020 at 6:00 am.