**CHAPTER 400 -- INVESTIGATIONS**

**(400)-60** **[General Legal Matters]{.underline}**

60.1 [Overview.]{.underline}

This section contains administrative instructions and general
information for TIGTA-Office of Investigations (OI) personnel,
including:

-   [Giglio Policy](#GiglioPolicy)

-   [Right to Financial Privacy Act of 1978](#RFPA)

-   [Peace Officer Status and Scope of Employment](#PeaceOfficerStatus)

    1.  [Acronyms
        Table.](../../../../../../../../I:/chapter400-inv/acronyms-table/acronyms-table.doc)

60.2 []{#GiglioPolicy .anchor}[Giglio Policy.]{.underline}

For Giglio Policy information, see [Chapter 700, Chief Counsel, Section
90.8](../../../../../../../../I:/chapter700-counsel/700-90/700-90.doc#Giglio)
of the TIGTA Operations Manual.

60.3 []{#RFPA .anchor}[Right to Financial Privacy Act of
1978.]{.underline}

The [Right to Financial Privacy Act of
1978](http://www.access.gpo.gov/uscode/title12/chapter35_.html) (RFPA)
generally prohibits government access to, and a financial institution\'s
disclosure of, the financial records of certain of its customers. The
RFPA does not apply to bank records of corporations, associations, or
larger partnerships. An exception to the general rule is a legitimate
law enforcement inquiry complying with one of the prescribed methods of
access.

The RFPA provides civil penalties for violations by financial
institutions and federal agencies. The RFPA also provides for
disciplinary proceedings by the Office of Personnel Management (OPM) to
determine if a federal officer willfully or intentionally violated the
RFPA.

60.3.1 [Definitions Used In the RFPA.]{.underline} The following
definitions apply to the RFPA:

-   **Person --** is an individual or partnership of five or fewer
    individuals. The RFPA does not apply to bank records of
    corporations, trusts, associations, or larger partnerships. It also
    does not apply to deceased account holders.

-   **Customer --** is any person or authorized representative of that
    person who is using or has used any service of a financial
    institution, or for whom a financial institution is acting or has
    acted as a fiduciary to an account maintained in the person\'s name

-   **Financial institution --** is any office of a bank, savings bank,
    credit card issuer, industrial loan company, trust company, savings
    and loan, homestead association including cooperative banks, credit
    union, or consumer finance institution located in any State or
    territory of the United States, Puerto Rico, Guam, American Samoa,
    or the Virgin Islands.

-   **Financial record --** is an original of, 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. The account must be in the customer's true
    name. Accordingly, the RFPA does not apply to forged or counterfeit
    financial instruments or records concerning an account maintained
    under a fictitious name.

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-   **Law enforcement inquiry --** is an official lawful investigation
    of a violation of any criminal or civil statute, regulation, rule or
    order.

60.3.2 [Basic Requirements of the RFPA.]{.underline} The RFPA imposes
certain basic requirements regarding:

-   Restrictions on government access

-   Government certification of compliance with the RFPA

-   Notice to customer

-   Challenge

-   Appeals

-   Notification of legal proceedings

-   Delay of notice

-   Use of information

60.3.3 [Restrictions on Government Access.]{.underline} The RFPA
prohibits any government authority, federal department or agency from
accessing or obtaining from a financial institution copies of, or
accessing or obtaining the information contained in the financial
records of any customer unless the financial records are reasonably
described and either:

-   The customer has authorized disclosure;

-   Disclosure is authorized by an administrative subpoena or summons.
    See [Section
    220](../../../../../../../../I:/chapter400-inv/400-220/chapter400-220.doc)
    of this Chapter for additional information regarding administrative
    subpoenas;

-   Search warrant;

-   Judicial subpoena; or

-   A formal written request

TIGTA Special Agents (S/A's) are not authorized to use a formal written
request to obtain financial records. [31 CFR §
14.3](http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=240bcebc52f333e7a0802846302af128&rgn=div8&view=text&node=31:1.1.1.1.15.0.3.3&idno=31)
authorizes Treasury agencies to use formal written requests only if the
agency does not have administrative subpoena or summons authority, or if
that authority is not reasonably available for the specific purpose of
the request. TIGTA has administrative subpoena authority pursuant to the
[Inspector General (IG)
Act](http://www.access.gpo.gov/uscode/title5a/5a_2_.html).

60.3.4 [Government Certification of Compliance with RFPA.]{.underline} A
financial institution will not release financial records of a customer
until the government authority seeking such records certifies in writing
that it has complied with all applicable provisions of the RFPA. Such
certification relieves the financial institution of any liability to the
customer in connection with the disclosure of the financial records. See
Certificate Of Compliance With The Right To Financial Privacy Act (TIGTA
Form OI S-012) for sample certification format.

60.3.5 [Notice to Customer.]{.underline} The RFPA requires that a
customer of a financial institution be given prior notice of the attempt
of a government authority to gain access to records or record
information held by the financial institution concerning such customer.
See Customer Notice Form (OI S-005) for the notice required to be given
with a judicial subpoena, administrative subpoena, or formal written
request. The notice to the customer is accompanied by a motion paper and
sworn statement, which the customer may use to try to quash the
subpoena. See Customer's Motion To Challenge Government Access To
Financial Records Form (OI S-008) and Customer's Sworn Statement For
Filing A Challenge Form (OI S-009) for samples of each. Customers do not
have to use these forms.

60.3.6 [Motions to Quash and Applications to Enjoin.]{.underline} The
RFPA provides that the customer of a financial institution may challenge
the government\'s access to his or her records if, within 10 days of
service or 14 days of mailing a subpoena or formal written request, the
customer files in the appropriate federal court a motion to quash the
administrative subpoena or judicial subpoena or an application to enjoin
a government authority from obtaining access pursuant to a formal
written request. If the customer files a motion to quash and, in the
opinion of the court, complies with the RFPA\'s procedural requirements,
the court will order the government to file a sworn response.

The government authority may file its response in camera if the response
includes the reasons which make in camera review appropriate. This
should only be done if it is necessary to protect the investigation, the
safety of witnesses, or to avoid improper discovery practices.

The government response should set forth the reason why the
investigation is proper and why the records are relevant. The government
bears the burden of proving substantial compliance with the RFPA\'s
requirements for access to the customer's financial records. If the
court finds that the financial records sought pertain to an
investigation within the law enforcement agency's jurisdiction and that
the records sought are relevant to that inquiry, it will deny the motion
or application, and in the case of an administrative summons or court
order other than a search warrant, order such process enforced. The RFPA
contemplates that the motion to quash or application will be decided
within 7 calendar days of the filing of the government\'s response.

60.3.7 [Appeals.]{.underline} A court ruling denying a customer\'s
motion to quash is not a final order and an interlocutory appeal may not
be taken by the customer. If no legal proceeding is to be commenced
against the customer, an appeal may be made within 30 days of a
notification to that effect.

The U.S. Attorney (USA) can appeal an adverse final judgment. The
customer must be notified within 30 days of the USA's decision to appeal
an adverse ruling. An appeal may be taken within 30 days of such
notification. In the event that no determination regarding a legal
proceeding is made within 180 days, a certification may be required by
the court until the investigation is concluded.

60.3.8 [Delayed Notice.]{.underline} The government authority may apply
to an appropriate court to delay the required notice to the customer for
as much as 90 days and to issue an order prohibiting the financial
institution from disclosing that records have been obtained or that a
request for records has been made. Such delay may be granted if the
court finds that notice to the customer will result in endangering the
physical safety of any person, or cause flight from prosecution,
destruction of or tampering with evidence, intimidation of potential
witnesses, or seriously jeopardizing an investigation or official
proceeding. Additional extensions of 90 days may be granted by the court
upon application. Upon expiration of the delay of notification, the
customer shall be served with a copy of the process or request together
with Post-Notice Following Court-Ordered Delay Form (OI S-013).

60.3.9 [Transfer of Information.]{.underline} Financial records TIGTA
originally obtains pursuant to the RFPA shall not be transferred to any
other agency or department, including the Department of Justice (DOJ),
unless TIGTA certifies in writing that there is reason to believe that
the records are relevant to a legitimate law enforcement inquiry within
the jurisdiction of the receiving agency or department. After consulting
with TIGTA Counsel, the appropriate Assistant Inspector General for
Investigations (AIGI) shall sign the appropriate certification and
forward a copy to TIGTA Counsel. In addition, within 14 days of the
transfer, the ASAC shall send a copy of the certification to the
customer notifying him/her of the nature of the law enforcement inquiry
and his/her rights pursuant to the RFPA. Court orders may be used to
delay this notice. See Certification For Transferring Records Obtained
Pursuant To The Right To Financial Privacy Act Of 1978 Form (OI S-014)
and Notice Of Transfer Of Financial Records Form (OI S-015).

60.3.10 [Exceptions and Special Procedures.]{.underline} Exceptions or
special procedures are provided for:

-   Disclosure to government authority authorized to conduct foreign
    counter, or foreign positive, intelligence activities for purposes
    of conducting such activities;

-   Disclosure to the U.S. Secret Service (USSS) for the purpose of
    conducting its protective functions;

-   Disclosure of financial records or information in accordance with
    the Internal Revenue Code (IRC);

-   Disclosure to, or examination by, supervisory agency pursuant to the
    exercise of supervisory, regulatory, or monetary functions with
    respect to financial institutions, holding companies, subsidiaries,
    institution-affiliated parties or other person participating in the
    conduct of the affairs thereof;

-   Disclosure pursuant federal statute or rule promulgated thereunder;

-   Voluntary disclosure of information to governmental authorities
    pertaining to possible violations of law, limited to the name or
    identifying information concerning the individual, corporation or
    account involved in, and the nature of, any suspected illegal
    activity;

-   Disclosure pursuant to legitimate law enforcement inquiry respecting
    name, address, account type and number of particular customer or
    ascertainable group of customers associated with a financial
    transaction or class of financial transactions or with a foreign
    account in the United States under section 5(b) of the Trading with
    the Enemy Act; the International Emergency Economic Powers Act; or
    Section 5 of the United Nations Participation Act;

-   Disclosure of financial records not identified with or identifiable
    as being derived from a particular customer;

-   Disclosure pursuant to Federal Rules of Criminal and Civil Procedure
    or comparable rules of other courts in connection with litigation to
    which the government authority and the customer are parties;

-   Disclosure pursuant to administrative subpoena issued by an
    administrative judge and to which the government authority and the
    customer are parties;

-   Disclosure pursuant to a lawful investigation, proceeding,
    examination, or inspection directed at a financial institution, or
    legal entity, whether or not also directed at a customer or at a
    legal entity which is not a customer; or in connection with the
    authority's consideration or administration of assistance to the
    customer in the form of a government loan, loan guaranty, or loan
    insurance program. Financial records obtained pursuant to this
    subsection may be transferred to another agency or department only
    to facilitate a lawful investigation, proceeding, examination or
    inspection directed at a financial institution, whether or not also
    directed at a customer, or at a legal entity which is not a
    customer;

-   Disclosure pursuant to lawful proceeding, investigation, etc.,
    directed at a financial institution or legal entity or consideration
    or administration respecting government loans, loans guarantees,
    etc.;

-   Disclosure pursuant to the issuance of a subpoena or court order;

-   Respecting grand jury proceedings;

-   Disclosure pursuant to a proceeding, investigation, etc., instituted
    by the GAO and directed at a government authority;

-   Disclosure of any financial record or information to a government
    authority in conjunction with a federal contractor-issued travel
    charge card issued for official government travel;

-   Disclosure of financial records from a financial institution to a
    government authority, if the government authority determines that
    delay in obtaining access to such records would create imminent
    danger of physical injury to any person; serious property damage; or
    flight to avoid prosecution. The existence of any of the
    above-referenced situations will be addressed as an emergency
    situation. See text [60.3.15](#EmergencyAccess) of this Section and
    [Section
    220](../../../../../../../../I:/chapter400-inv/400-220/chapter400-220.doc)
    of this Chapter.

60.3.11 [Methods of Accessing Financial Records.]{.underline} Access
financial records by any of the following methods:

-   Administrative subpoena, as detailed in [Section
    220](../../../../../../../../I:/chapter400-inv/400-220/chapter400-220.doc)
    of this Chapter

-   Customer authorization

-   Search warrant

-   Judicial subpoena

60.3.12 [Customer Authorization.]{.underline} The customer may authorize
disclosure if he or she furnishes to the financial institution and to
the government authority seeking to obtain such disclosure a signed and
dated statement which:

-   Authorizes such disclosure for a period not in excess of 3 months;

-   States that the customer may revoke such authorization at any time
    before the financial records are disclosed;

-   Identifies the financial records which are authorized to be
    disclosed;

-   Specifies the purposes for which, and the government authority to
    which, such records may be disclosed; and

-   States the customer's rights. See Customer Authorization To Release
    Financial Record Form (OI S-004) and Statement Of Customer Rights
    Under The Right To Financial Privacy Act Of 1978 Form (OI S-006).

60.3.13 [Search Warrant.]{.underline} A government authority may obtain
financial records by using a search warrant only if it obtains the
search warrant pursuant to the Federal Rules of Criminal Procedure.
Unless a U.S. District Court grants a delay, no later than 90 days after
the issuance of a search warrant, the government authority must mail a
copy of the search warrant to the customer\'s last known address along
with a notice similar to [Exhibit
(400)-60.2](../../400-exhibits/exhibit400-60-2.doc).

Upon expiration of the period of delay of notification of the customer,
mail to the customer a copy of the search warrant and a notice similar
to [Exhibit (400)-60.3.](../../400-exhibits/exhibit400-60-3.doc)

60.3.14 [Judicial Subpoena.]{.underline} A judicial subpoena is an order
of a court that requires a person to be present at a certain time and
place or suffer a penalty. A subpoena *duces tecum* is an order of a
court requiring the production of documents. A copy of the subpoena is
served on the customer or mailed to the last known address on or before
the date the subpoena is served on the financial institution, together
with the notice to the customer, a motion paper, and sworn statement.
See Instructions For Completing And Filing The Customer's Challenge
Motion And Sworn Statement Form (OI S-007), OI S-008 and OI S-009.

60.3.15 []{#EmergencyAccess .anchor}[Emergency Access.]{.underline} When
there is reason to believe that delay in obtaining financial records
from a financial institution would create imminent danger of physical
injury to any person, serious property damage, or flight to avoid
prosecution, submit to the financial institution the certification of
compliance with the RFPA. See Form OI S-012. In addition:

-   Within 5 days of access, a sworn statement setting forth the grounds
    for emergency access by the above TIGTA official must be filed with
    the appropriate court.

-   As soon as possible after the records have been obtained, unless a
    delay order is instituted, mail or serve a copy of the request
    together with notification of emergency access to the customer. See
    [Exhibit (400)-60.1](../../400-exhibits/exhibit400-60-1.doc) for
    sample format.

60.3.16 [Cost Reimbursement.]{.underline} Section 1115 of the RFPA
caused the Federal Reserve Board to set the rates and conditions for
reimbursement of reasonably necessary costs directly incurred by
financial institutions in providing customer financial records to
federal agencies. Upon receipt of an invoice for records provided by any
entity as the result of a subpoena, the field office will forward the
invoice to TIGTA-OI Operations Division. See [Section
220.7.3](../../../../../../../../I:/chapter400-inv/400-220/chapter400-220.doc#Reimbursement)
of this Chapter for details on cost reimbursement for compliance with
subpoena requests.

60.4 []{#PeaceOfficerStatus .anchor}[Peace Officer Status and Scope of
Employment.]{.underline}

The Omnibus Consolidated and Emergency Supplemental Appropriations Act
of 1999, [P.L.
105-277](http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=105_cong_public_laws&docid=f:publ277.105),
Div. A, Sec. 101(h), Title VI, Sec 627, provides that a federal Law
Enforcement Officer (LEO) shall be construed to be acting within the
scope of his or her employment if the LEO takes reasonable action,
including the use of force, to:

-   Protect an individual in the presence of the officer from a crime of
    violence;

-   Provide immediate assistance to an individual who has suffered or
    who is threatened with bodily harm; or

-   Prevent the escape of any individual who the officer reasonably
    believes to have committed in the presence of the officer a crime of
    violence.

Some states provide peace officer status to specific federal officers,
such as the Federal Bureau of Investigation (FBI) or Drug Enforcement
Administration (DEA), but do not give this status to all federal LEO's.
Research of state statutes revealed that the number of states that did
not afford peace officer status to federal LEO's far exceeded the number
of states that extended peace officer status.

Unless covered by P.L. 105-277 or other applicable federal law, actions
taken solely under the authority of state law are beyond the authority
of a federal LEO's scope of employment.

In non-federal crime situations, an S/A's authority is that of a private
citizen and the rules of "citizen arrest" apply.

60.4.1 [Law As It Applies to TIGTA Special Agents.]{.underline} An S/A
who acts as a peace officer under state law is not protected by the
Federal Tort Claims Act, and may be personally liable for negligent
acts.

While a state may confer peace officer authority upon federal LEO's, the
state cannot broaden the jurisdictional limits of TIGTA S/A's
established by Congress. A state may not impose a duty upon TIGTA S/A's
to enforce its state criminal laws.

60.4.2 [Lawful Conduct -- Peace Officer.]{.underline} The standards for
determining whether certain conduct is lawful or unlawful are different
for a peace officer and a private citizen.

A peace officer may make an arrest under different circumstances than
those under which a private person may act.

Generally, a peace officer may use greater force in effectuating an
arrest than a private citizen may use.

Peace officers may be exempted from specific subsections of the state
statute that make it unlawful to possess or carry certain weapons.

60.4.3 [Liability -- When Acting as a Peace Officer.]{.underline} Unless
an action is covered by P.L. 105-277 or other applicable federal law:

-   TIGTA S/A's may be held individually liable for damages absent state
    legislation or judicial decision affording indemnification under
    state law to peace officers.

-   The U.S. may not be held liable for such actions, nor may the
    federal government indemnify federal LEO's for damages assessed
    against them. TIGTA does not have the authority to pay any adverse
    judgment rendered against an employee acting outside the scope of
    his or her employment.

-   An S/A would not have the benefit of the qualified immunity afforded
    federal employees acting within the scope of their employment and
    may not have the benefit of the defense of qualified immunity if
    their actions became the subject of litigation under [42 U.S.C. §
    1983](http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=browse_usc&docid=Cite:+42USC1983).

-   Benefits may not be paid under the Federal Employees Compensation
    Act (FECA) to TIGTA S/A's who were injured as a result of actions
    taken in the capacity of peace officers.

-   The DOL has discretion as to who will be eligible for benefits under
    the FECA.