**CHAPTER 400 -- INVESTIGATIONS**

**(400)-220** **[Inspector General Subpoenas]{.underline}**

220.1 [Overview.]{.underline}

This section outlines the policies and procedures for the use of
administrative subpoenas in TIGTA audits, investigations and inquiries.
This section also explains the statutory basis for Inspector General
(IG) subpoenas, their scope, enforceability, and application of the
Right to Financial Privacy Act (RFPA) and the Family Educational Right
to Privacy Act (FERPA).

This section includes information related to the following:

-   [Subpoena Authority and Procedures](#SubpoenaAuthorityProcedures)

-   [Materials Covered by TIGTA Subpoena
    Authority](#MaterialCoveredTIGTASubAuthority)

-   [Policy Issues](#Policy)

-   [Subpoena Request Procedures](#SubpoenaRequest)

-   [Service of Subpoenas](#ServiceSubpoenas)

-   [Production of Records](#ProductionRecords)

-   [Responsibilities for Investigative Subpoenas](#Responsibilities)

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

-   [Applicability of the Family Educational Rights and Privacy
    Act](#FERPA)

Specific guidance related to subpoena procedures for the Office of Audit
(OA) is outlined in [Chapter 300, Auditing, Section
80.8](../../../../../../../../I:/chapter300-audit/300-80/chapter300-80.doc#SubpoenaAuthority)
of the TIGTA Operations Manual.

220.1.1 [Acronyms
Table.](../../../../../../../../I:/chapter400-inv/acronyms-table/acronyms-table.doc#Intro11)

220.2 []{#SubpoenaAuthorityProcedures .anchor}[Subpoena Authority and
Procedures.]{.underline}

The IG has authority under Section 6(a)(4) of the [IG
Act](http://uscode.house.gov/uscode-cgi/fastweb.exe?getdoc+uscview+t05t08+1160+25++('Inspec)
to require the production of documentary evidence by subpoenas addressed
to parties other than Federal agencies. Specifically, the IG is
authorized to require by subpoena the production of all information,
documents, reports, answers, records, accounts, papers, and other data
and documentary evidence necessary in the performance of the functions
assigned by the IG Act, which subpoena, in the case of contumacy or
refusal to obey, shall be enforceable by order of any appropriate United
States district court: Provided, that procedures other than subpoenas
shall be used by the IG to obtain documents and information from Federal
agencies.

The [Program Fraud Civil Remedies
Act](http://www4.law.cornell.edu/uscode/31/3801.html) (PFCRA), 31 U.S.C.
§§ 3801 -- 3812, also provides the IG with subpoena authority as the
investigating official under the Act.

220.3 []{#MaterialCoveredTIGTASubAuthority .anchor}[Materials Covered by
TIGTA Subpoena Authority.]{.underline}

Under the IG Act, TIGTA may subpoena any documents, reports**,**
records, accounts, papers, and other data and documentary evidence
necessary to carry out the statutory functions of TIGTA. This includes
information maintained and/or stored in electronic, computer, or related
media. Subpoenaed parties cannot be compelled to create a record that
does not already exist, e.g., prepare responses to specific questions.
TIGTA subpoenas are not available to obtain testimonial evidence, with
the exception of statements that attest to the authenticity and
completeness of documents provided in response to a TIGTA subpoena.

220.3.1 [Subpoenaed Parties.]{.underline} Generally, TIGTA subpoena
authority will apply to four categories of subpoenaed parties:

**Personal** -- An individual can be required to produce any records
within his/her possession, including tax returns, bank statements, and
employment records if those materials are necessary to TIGTA in carrying
out its responsibilities under the IG Act. An individual, of course, may
assert his/her privilege against self‑incrimination under the Fifth
Amendment or, in certain instances, other privileges such as
attorney‑client or doctor‑patient. Consult with TIGTA Counsel regarding
the application of such a right or privilege to the specific facts of
the situation should this occur.

**Corporate and Other Non‑Personal** -- TIGTA can require production of
any corporate or non‑personal record, even those which are not normally
made available under the audit clause of a contract or grant, if those
materials are necessary to TIGTA in carrying out its responsibilities
under the IG Act. Relevant records can be subpoenaed from third parties
that do not have a contractual, grant, or other relationship with the
Internal Revenue Service (IRS).

**Financial Institutions** -- Banks, credit unions, loan companies, and
credit card companies can be required to produce the financial records
of customers if those materials are necessary to TIGTA in carrying out
its responsibilities under the IG Act. However, TIGTA must comply with
the provisions of the RFPA.

**Governmental** -- A state or municipal government body or agency can
be required to produce documents necessary to TIGTA in carrying out its
responsibilities under the IG Act. This authority extends to US
possessions and territories such as Puerto Rico, Guam, and the US Virgin
Islands. However, TIGTA subpoenas cannot be used to obtain records and
information from federal agencies.

220.3.2 [Possession.]{.underline} Parties may be subpoenaed for records
that are in either their actual or constructive possession. Constructive
possession refers to materials that are not in a subpoenaed party's
actual custody but are available to, or under the control of, that party
(e.g., corporate officer having access to corporate records; individual
having access to his/her own records in possession of accountant).

220.3.3 [Conditions for Issuance.]{.underline} The inquiry, either audit
or investigation, must be related to the functions designated in the IG
Act or the PFCRA. IG subpoena authority may not be used to obtain
records on behalf of another agency, either federal or state, or for
another office within the Department of Treasury.

The documents sought must be relevant to that inquiry.

The demand contained in the subpoena must be reasonable and should not
be unduly burdensome.

220.4 []{#Policy .anchor}[Policy Issues.]{.underline}

TIGTA subpoenas should be used to obtain records needed in audits and
investigations for which the TIGTA has responsibility under the IG Act
or the PFCRA. Where appropriate, documents and information should be
sought by voluntary production or pursuant to contractual, grant, or
regulatory obligations, prior to issuance of a subpoena. Where access to
records is refused, TIGTA representatives may advise that the TIGTA has
subpoena authority but should not threaten the use of such authority. If
voluntary production does not occur or records are not made available in
a timely manner, service of a subpoena may be advisable.

220.4.1 [Criminal Investigations.]{.underline} Where documents are
required for a criminal investigation, the issuance of a subpoena should
be coordinated with the Department of Justice (DOJ) and/or U.S.
Attorney's Office (USAO). Where documents are required for an audit
[and]{.underline} there is a related ongoing criminal investigation, the
issuance of a subpoena should be coordinated with TIGTA-Office of
Investigations (OI) as well as the DOJ and/or USAO. The use of a TIGTA
subpoena after a grand jury has convened in a particular matter should
be avoided, and should be requested only after discussions with the
TIGTA Counsel and/or DOJ/USAO.

220.4.2 [Restrictions on Disclosure.]{.underline} Disclosure of
subpoenaed records will not be made except as required by law, e.g.,
court order, or authorized by applicable law, e.g., [I.R.C. §
6103](http://www4.law.cornell.edu/uscode/26/6103.html) or Privacy Act.

220.5 []{#SubpoenaRequest .anchor}[Subpoena Requests
Procedures.]{.underline}

Subpoena requests will usually originate with the assigned Special Agent
(S/A) using TIGTA forms. S/A's are encouraged to discuss the proposed
subpoena request with the Operations Division prior to forwarding the
request to ensure that all relevant information is included and any
unusual issues are addressed.

220.5.1 [Subpoena Forms.]{.underline} Designated TIGTA subpoena forms
shall be used, as follows:

  ---------- ------------------------ ---------- --------------------------
  **Form     **Title**                **Form     **Title**
  Number**                            Number**   

  OI S-001   Subpoena Request         OI S-009   Customer's Sworn Statement
                                                 for Filing a Challenge

  OI S-002   Subpoena                 OI S-010   Certificate of Service

  OI S-003   Return of Service        OI S-011   Cover Letter to Financial
                                                 Institution

  OI S-004   Customer Authorization   OI S-012   Certificate of Compliance
             to Release Financial                with the RFPA
             Records                             

  OI S-005   Customer Notice          OI S-013   Notice Following
                                                 Court-Ordered Delay

  OI S-006   Statement of Customer    OI S-014   Certificate Concerning
             Rights (for RFPA)                   Transfer of Financial
                                                 Records

  OI S-007   Instructions for         OI S-015   Notice of Transfer of
             Completing Challenge                Financial Records

  OI S-008   Customer's Motion to     OI S-016   Notice That No Legal
             Challenge                           Proceedings Are
                                                 Contemplated
  ---------- ------------------------ ---------- --------------------------

220.5.2 [Information in Request.]{.underline} The assigned S/A, using
TIGTA Forms OI S-001 and OI S-002, will initiate the subpoena request.
The request should reflect the need for using a subpoena, and include:

-   Title and file number of the investigation and/or audit;

-   The name and address of the individual, corporation, partnership,
    agency, institution, or other unincorporated business whose records
    are sought and the name and address of the custodian of the records,
    if known;

-   The justification for issuance of the subpoena, which should include
    a concise history of the related audit or investigation and its
    status to date, including: the nature of the inquiry; the violation
    alleged; the relation of the information sought to the inquiry; and,
    whether an effort was made to get the records voluntarily and the
    result thereof, or why such effort was inadvisable;

-   A complete and precise description of the items to be obtained.
    Documents should be divided into categories, e.g., payroll records,
    payment invoices, bank statements, financial records, tax returns,
    etc., and should be otherwise identified as completely as possible.
    Categories should, where possible, be related to a particular loan,
    contract, claim, benefit, payment or other transaction that is
    pertinent to the inquiry. A time period related to the documents
    should be specified, e.g., "All payroll records from January 1, 1998
    to the present\". The use of attachments to describe the type(s) of
    records sought is encouraged;

-   Any special element of urgency, e.g., possibility of removal or
    destruction of records;

-   Whether a privilege is expected to be asserted by the witness, such
    as attorney‑client, doctor‑patient, or self‑incrimination under the
    Fifth Amendment;

-   The likelihood, if any, that judicial enforcement of the subpoena
    will be required, or that the subpoenaed party will challenge the
    subpoena through court proceedings, e.g., motion to quash;

-   The proposed date of service; and

-   The name and telephone number of the agent conducting the inquiry.

220.5.3 [Processing of Investigative Subpoena Requests.]{.underline} All
TIGTA-OI subpoena requests will be approved by the SAC before they are
forwarded for final approval.

The approved request will be forwarded to the TIGTA-OI Operations
Division via email (**\*TIGTA Inv Operations**). The transmittal package
to be forwarded will include a completed Form OI S-001 and Form OI
S-002. For subpoenas impacted by the RFPA, additional forms are
necessary, as described in text [220.9](#RFPA) of this Section. The
Operations Division will conduct an initial review of the request and
forward it to TIGTA Counsel. Counsel will review the request and the
supporting documentation as to completeness, validity, and legal
sufficiency. After review, Counsel will forward the electronic documents
to the appropriate AIGI for signature. The AIGI, when approving the
request, will manually sign both the original and duplicate original.
The use of electronic signatures is not approved for the original and
duplicate original subpoenas. The AIGI office will send copies of the
signed subpoena to TIGTA Counsel, who will maintain a copy with the
register. Both the signed original subpoena and the duplicate original
will be sent to the requesting agent via overnight delivery.

220.6 []{#ServiceSubpoenas .anchor}[Service of Subpoenas.]{.underline}

TIGTA subpoenas will normally be personally served by the assigned S/A
or auditor at the principal place of business or residence of the party
subpoenaed during normal business hours. However, arrangements may be
made to have other individuals personally serve the subpoena in
accordance with applicable rules.

In appropriate circumstances, service may be made via the mails or
through the subpoenaed party's counsel.

TIGTA Counsel should be contacted regarding the use of non‑personal
service. Service should be made as soon as possible after the subpoena
is issued.

A "duplicate original" of the subpoena, Form OI S-002, is left with the
subpoenaed party or with the management representative in the case of a
business entity.

220.6.1 [RFPA Requirements.]{.underline} The RFPA requires that numerous
additional forms and notices be sent when a subpoena is to be served on
a financial institution. A full explanation of RFPA requirements begins
at text [220.9](#RFPA) of this section.

220.6.2 [Place of Appearance.]{.underline} The place of appearance
normally will be at the nearest TIGTA post of duty but may be at the
premises where the records are held when more reasonable under the
particular circumstances. If appropriate, the subpoena may be completed
to show that the records may be sent via registered mail to the
requesting S/A or auditor.

220.6.3 [Proof of Service.]{.underline} Proof of service is evidenced by
the serving S/A or auditor (or other individual) executing a "Return of
Service" certificate, Form OI S-003, and attaching the executed form to
the original subpoena. The original subpoena with the executed "Return
of Service" will be placed in and become a permanent part of the
appropriate investigation file of the requesting office. Copies of the
subpoena and completed "Return of Service" should be scanned into .pdf
file format and forwarded to the e-mail address "\*TIGTA Counsel Office"
for entry in the Subpoena Register.

220.6.4 [Subpoena Register.]{.underline} The TIGTA Counsel will maintain
the Subpoena Register in which all subpoenas will be logged and relevant
information, including all documentation used to support the issuance of
the subpoena, will be maintained.

220.7 []{#ProductionRecords .anchor}[Production of Records.]{.underline}

Reasonable time should be allowed for the production of the records
after service of the subpoena -- usually ten to thirty days. Factors to
be considered include the type and volume of records and the possibility
of removal or destruction. TIGTA Counsel will be consulted regarding
instances requiring an unusually short return time, i.e., less than 7
days.

220.7.1 [Return Date.]{.underline} The assigned S/A may, at his/her
discretion and in writing, extend the return date for a limited period
of time. All written extensions of time shall be filed with the original
subpoena, with a copy sent to TIGTA Counsel. Extensions of time that
involve special circumstances or ­longer periods of time should be
coordinated with the TIGTA Counsel.

220.7.2 [Compliance.]{.underline} If the terms of the subpoena appear to
have been satisfied, the recipient S/A should prepare a memorandum to
the file attesting to this fact. The memorandum will identify the
individual producing the records, the capacity in which he/she acted, a
description of the documents obtained, and the time and place of
production. The memorandum will be placed in the case file in the
requesting office. If requested and to the extent permitted by
applicable law, a copy should be provided to the subpoenaed party. A
copy of the memorandum should also be provided to TIGTA Counsel.

220.7.3 [Reimbursement.]{.underline} Generally, subpoenaed parties are
not entitled to reimbursement from TIGTA for the costs of searching,
assembling, and copying subpoenaed records. Corporations are required by
law to comply with administrative subpoenas, regardless of compensation.
Two notable exceptions to this rule are:

-   Financial institutions, as defined in the RFPA, may seek
    reimbursement for the costs of providing for customer financial
    records. A full explanation of RFPA requirements begins at text
    [220.9](#RFPA) of this section.

-   Pursuant to 18 U.S.C. § 2706, telecommunication carriers are
    authorized to charge a reasonable fee to cover the costs of
    searching for and providing information responsive to a subpoena. IG
    subpoenas are an exception from this rule, but only to the extent
    that they seek \"records or other information maintained by a common
    carrier that relate to telephone toll records and telephone
    listings.\" S/A's and auditors are cautioned that telecommunication
    carriers may interpret virtually any request that does not use the
    words \"telephone toll records\" as being subject to reimbursement.
    The term \"telephone toll records\" generally includes records of
    outgoing long distance calls made from a landline and records of all
    incoming and outgoing calls made to/from a cellular phone. With
    respect to landlines specifically, the cost of searching for records
    of incoming local calls is reimbursable, and the cost of searching
    for records of incoming long distance calls may also be
    reimbursable.

S/A's will contact financial institutions and telecommunication carriers
prior to initiating the subpoena request to ascertain the types of
records available and the costs, if any, that would apply. This step
will help ensure that the subpoena seeks necessary information in a
cost-effective manner.

Upon receipt of an invoice for records provided by any entity, the field
office will forward the invoice to TIGTA-OI Operations Division.
Operations Division will coordinate with TIGTA Counsel to determine if
reimbursement is authorized. As appropriate, invoices will be paid by
Operations Division utilizing the funding codes of the field office.
Payments that do not involve the use of a government credit card or
exceeds \$2500 must be coordinated through the Assistant Director,
Financial Management.

220.7.4 [Noncompliance.]{.underline} If the addressee of the subpoena
does not comply with the subpoena, the assigned S/A will advise the
TIGTA-OI Operations Division promptly, and will provide Operations
Division with an affidavit describing the relevant circumstances.
Operations Division will coordinate with TIGTA Counsel to develop
strategy and procedures to ensure compliance. If enforcement action is
taken, it will be coordinated with DOJ and/or USAO.

220.7.5 [Return of Records.]{.underline} Upon completion of all TIGTA
interest, original documents should be returned to their custodian. A
receipt should be obtained for all returned documents, originals or
copies. A matter is considered completed when the TIGTA investigation is
terminated and no further use is required of the subpoenaed material in
any civil, criminal or administrative proceeding.

220.8 []{#Responsibilities .anchor}[Responsibilities for Investigative
Subpoenas.]{.underline}

The following chart summarizes the responsibilities of individuals in
the IG subpoena process.

+----------------------+-----------------------------------------------+
| **Responsibility**   | **Action**                                    |
+----------------------+-----------------------------------------------+
| S/A                  | Determine need for subpoena.                  |
|                      |                                               |
|                      | Originate subpoena request with justification |
|                      | and required information.                     |
|                      |                                               |
|                      | Originate proposed subpoena.                  |
|                      |                                               |
|                      | If RFPA applies, originate all required forms |
|                      | and submit with original request.             |
|                      |                                               |
|                      | Obtain review/approval of SAC, through ASAC.  |
|                      |                                               |
|                      | If necessary, coordinate subpoena issuance    |
|                      | with DOJ or USAO.                             |
|                      |                                               |
|                      | Ensure proper service of subpoena and execute |
|                      | return of service certification, with copy to |
|                      | TIGTA Counsel.                                |
|                      |                                               |
|                      | Receive records; examine; prepare memorandum  |
|                      | regarding receipt of records; return records. |
|                      |                                               |
|                      | Document compliance/non‑compliance with       |
|                      | subpoena, with copy to TIGTA Counsel.         |
|                      |                                               |
|                      | Provide TIGTA Counsel with a copy of the      |
|                      | affidavit describing relevant circumstances   |
|                      | of non-compliance.                            |
+----------------------+-----------------------------------------------+
| SAC                  | Review, approve and expeditiously submit      |
|                      | subpoena request, proposed subpoena, and      |
|                      | additional forms or information to Operations |
|                      | Division via email (**\*TIGTA Inv             |
|                      | Operations**).                                |
|                      |                                               |
|                      | Monitor handling of approved subpoena,        |
|                      | including return of documents upon completion |
|                      | of use.                                       |
+----------------------+-----------------------------------------------+
| SAC-Operations       | Review subpoena request for compliance with   |
|                      | policy and forward to TIGTA Counsel.          |
|                      |                                               |
|                      | Monitor progress of request and facilitate    |
|                      | expeditious handling at each level.           |
|                      |                                               |
|                      | Reimburse subpoenaed partied for authorized   |
|                      | expenses, and coordinate with the Assistant   |
|                      | Director, Financial Management, OMS, as       |
|                      | necessary.                                    |
+----------------------+-----------------------------------------------+
| TIGTA Counsel        | Review subpoena request and proposed subpoena |
|                      | for completeness, validity and legal          |
|                      | sufficiency.                                  |
|                      |                                               |
|                      | Forward the electronic documents to the       |
|                      | appropriate AIGI for signature.               |
|                      |                                               |
|                      | Maintain Subpoena Register.                   |
|                      |                                               |
|                      | Coordinate necessary enforcement action if    |
|                      | requested.                                    |
+----------------------+-----------------------------------------------+
| AIGI                 | Approve and sign subpoenas and related        |
|                      | documents.                                    |
|                      |                                               |
|                      | Forward authorized and signed subpoenas to    |
|                      | requesting S/A.                               |
|                      |                                               |
|                      | Forward authorized additional forms (i.e.,    |
|                      | RFPA forms) to requesting S/A.                |
|                      |                                               |
|                      | Provide copies of signed subpoena to TIGTA    |
|                      | Counsel and Operations Division.              |
|                      |                                               |
|                      | Provide oversight of OIG subpoena activities  |
|                      | and ensure overall compliance by OIG staff    |
|                      | and managers with the provisions of this      |
|                      | document.                                     |
+----------------------+-----------------------------------------------+

220.9[]{#RFPA .anchor} [Applicability of the Right to Financial Privacy
Act.]{.underline}

The [RFPA](http://www4.law.cornell.edu/uscode/12/3401.html), 12 U.S.C.
§§ 3401 - 3422, imposes additional requirements and restrictions on the
use of TIGTA subpoenas to obtain customer financial records from a
"financial institution\" as defined in the RFPA. The primary requirement
involves prior notification to an individual or non‑corporate customer
and an opportunity for the customer to challenge the subpoena in U.S.
District Court. Corporate records that are subpoenaed from financial
institutions are not subject to the provisions of the RFPA. Records from
partnerships of more than five individuals are not subject to the RFPA.
TIGTA Counsel shall be consulted if there are any questions regarding
RFPA subpoenas.

220.9.1 [Definitions.]{.underline} The RFPA applies solely to financial
records held by a financial institution. Definitions are set forth in §
3401 of the RFPA and are provided in [Section
60.4.1](../../../../../../../../I:/chapter400-inv/400-60/chapter400-60.doc#DefinitionsUsedInRFPA)
of this Chapter. S/A's and auditors will refer to those definitions to
ensure the applicability of the RFPA.

220.9.2 [Forms Required for an RFPA Subpoena.]{.underline} In addition
to TIGTA Forms OI S-001 through OI S-003, which are utilized for any IG
subpoena, TIGTA Forms OI S-004 through OI S-016 are utilized to comply
with the provisions of the RFPA.

The following chart summarizes the forms which shall be prepared for the
various parties.

+-------------+--------------------------------------------------------+
| The         |                                                        |
| following   |                                                        |
| forms shall |                                                        |
| be prepared |                                                        |
| for the     |                                                        |
| customer:   |                                                        |
+-------------+--------------------------------------------------------+
| OI S-002    | Subpoena (copy)                                        |
+-------------+--------------------------------------------------------+
| OI S-004    | Customer Authorization to Release Financial Records    |
+-------------+--------------------------------------------------------+
| OI S-005    | Customer Notice                                        |
+-------------+--------------------------------------------------------+
| OI S-006    | Statement of Customer Rights (for RFPA)                |
+-------------+--------------------------------------------------------+
| OI S-007    | Instructions for Completing Challenge                  |
+-------------+--------------------------------------------------------+
| OI S-008    | Customer's Motion to Challenge                         |
+-------------+--------------------------------------------------------+
| OI S-009    | Customer's Sworn Statement for Filing a Challenge      |
+-------------+--------------------------------------------------------+
| OI S-010    | Certificate of Service                                 |
+-------------+--------------------------------------------------------+
| The         |                                                        |
| following   |                                                        |
| forms shall |                                                        |
| be prepared |                                                        |
| for the     |                                                        |
| financial   |                                                        |
| i           |                                                        |
| nstitution: |                                                        |
+-------------+--------------------------------------------------------+
| OI S-002    | Subpoena (original)                                    |
|             |                                                        |
| OI S-011    | Cover Letter to Financial Institution                  |
+-------------+--------------------------------------------------------+
| OI S-012    | Certificate of Compliance with the RFPA                |
+-------------+--------------------------------------------------------+

220.9.3 [Basic Requirements of the RFPA.]{.underline} The RFPA prohibits
a financial institution from releasing to a Federal department or agency
any records or information concerning a customer\'s transactions unless
one of the following methods is utilized:

**Voluntary Customer Authorization.** A customer may authorize access to
his/her financial records by signing and dating an authorization
statement. The authorization statement will identify the records
disclosed, the government authority, and purpose for disclosure. The
authorization is valid for 3 months following the date it is signed. The
authorization shall include the customer\'s rights under the RFPA Act.
The customer may revoke the authorization at any time prior to
disclosure. See Form OI S-004. If the customer is a bargaining unit
employee, consult with TIGTA Counsel or the SAC-Operations prior to
requesting voluntary authorization if the request is not made in the
course of a subject interview.

**Administrative Subpoena or Summons.** An authorized official may issue
an administrative subpoena for a customer\'s financial records if the
government agency has reason to believe that the records sought are
relevant to a legitimate law enforcement inquiry. A copy of the subpoena
together with Forms OI S-005 through OI S-010 shall be served on the
customer or mailed to his/her last known address on or before the date
the financial institution is served. TIGTA may obtain the records if 10
days have expired from the date of service of the notice, or 14 days
have expired from the date of mailing the notice, and the customer has
not filed a sworn statement or a motion to quash.

**Search Warrant.** When a government agency obtains access to financial
records pursuant to a search warrant, a copy of the search warrant must
be mailed to the customer\'s last known address, together with a notice,
no later than 90 days after the search warrant was served. A U.S.
District Court may grant a delay in mailing the notice. Upon expiration
of delay of notification, a copy of the search warrant must be mailed to
the customer along with the notice.

**Judicial Subpoena.** A copy of the subpoena shall be served on the
customer or mailed to his/her last known address on or before the date
the financial institution is served. This mail will also include a
notice to the customer, motion paper, and sworn statement. Grand Jury
subpoenas are exempt.

Records shall not be released until the Government certifies in writing
to the financial institution that it has complied with the RFPA. A
financial institution which makes a disclosure in good faith reliance
upon a certificate is relieved of any liability to the customer in
connection with the disclosure. See TIGTA Form OI S-012.

The RFPA requires that a customer be given prior notice when the
government attempts to gain access to information concerning his/her
financial transactions. The location of appropriate Federal district
courts should be included in the Customer Notice, including the District
Court for the District of Columbia, the District Court which has
jurisdiction over the customer's last known address, and the District
Court which has jurisdiction over the address of the financial
institution from which the records are being sought. See TIGTA Forms OI
S-005 and OI S-006.

**Challenge.** In general, the RFPA provides that the individual whose
financial records are being sought may challenge the government's access
to his/her records by filing a motion in Federal district court to quash
the administrative subpoena or an application to enjoin the Government
authority from obtaining financial records. Such filings must take place
within 10 days of service or 14 days of mailing of the customer notice.
The notice to the customer is accompanied by a motion paper and sworn
statement which the customer may use to challenge the subpoena in
Federal district court. See TIGTA Forms OI S-007, OI S-008, OI S-009,
and OI S-010.

**Legal Proceedings.** See [Sections
60.4.6](../../../../../../../../I:/chapter400-inv/400-60/chapter400-60.doc#MotionsToQuash)
and
[60.4.7](../../../../../../../../I:/chapter400-inv/400-60/chapter400-60.doc#Appeals)
of this Chapter for detailed information regarding legal proceedings
involving the RFPA.

**Delay of notice.** See [Section
60.4.8](../../../../../../../../I:/chapter400-inv/400-60/chapter400-60.doc#DelayedNotice)
of this Chapter for information regarding delay of notice under the
RFPA.

**Transfer of information.** See [Section
60.4.9](../../../../../../../../I:/chapter400-inv/400-60/chapter400-60.doc#TransferInformation)
of this Chapter for information regarding transfer of financial records
to another agency or department, including DOJ.

220.9.4 [Exceptions to the RFPA.]{.underline} See [Section
60.4.10](../../../../../../../../I:/chapter400-inv/400-60/chapter400-60.doc#ExceptionsAndSpecialProcedures)
of this Chapter for exceptions or special procedures provided in the
RFPA.

220.9.5 [Emergency Access.]{.underline} See [Section
60.4.15](../../../../../../../../I:/chapter400-inv/400-60/chapter400-60.doc#EmergencyAccess)
of this Chapter for information regarding emergency access to financial
records under the RFPA.

220.9.6 [Civil Penalties.]{.underline} Any federal agency or financial
institution violating the requirements of this Act is liable to the
customer for the sum of the following:

-   \$100 without regard to the volume of records involved;

-   any actual sustained damages as a result of disclosure;

-   punitive damages, if the violation was willful or intentional;

-   court costs and reasonable attorney\'s fees if the customer succeeds
    in court

If a court finds there are questions of whether a Federal officer or
employee acted willfully or intentionally with respect to the violation,
the RFPA provides that the Office of Personnel Management (OPM) shall
determine whether disciplinary action is warranted. The administrative
authority shall take the corrective action OPM recommends.

220.10 []{#FERPA .anchor}[Applicability of the Family Educational Right
to Privacy Act (FERPA).]{.underline}

The FERPA, [20 U.S.C. §
1232g](http://www4.law.cornell.edu/uscode/html/uscode20/usc_sec_20_00001232---g000-.html),
imposes additional restrictions on the use of TIGTA subpoenas to obtain
educational records from an educational agency or institution, as
defined in the FERPA. Under the FERPA regulations, the educational
agency or institution is required to make a reasonable attempt to notify
the student prior to complying with the subpoena unless, in the case of
a subpoena issued for law enforcement purposes, the subpoena orders that
such notification not be made. See [34 C.F.R. §
99.31(9)](http://a257.g.akamaitech.net/7/257/2422/12feb20041500/edocket.access.gpo.gov/cfr_2004/julqtr/34cfr99.31.htm).

220.10.1 [Definitions.]{.underline} The FERPA applies solely to
"educational records" held by an "educational agency or institution,"
and are defined in § 1232g(a) of the FERPA. S/A's and auditors will
refer to those definitions to ensure the applicability of the FERPA.
Generally, "educational records\" are defined as those records, files,
documents, and other materials that contain information directly related
to a student and that are maintained by the educational institution. For
the most part, "educational records" maintained by the educational
institution are available for student review.

FERPA does not apply to other types of records maintained by an
educational institution, such as (1) personal notes or records
(including computerized files) that are kept by an employee of the
educational institution maintained solely in her or his possession, (2)
records that relate to an employee (except student employees), (3)
medical and psychiatric records created, maintained, and used only in
connection with the treatment of a student and that are not available to
anyone other than the persons providing such treatment, and (4) records
that contain information relating to a person only after that person is
no longer a student (i.e., alumni records).

220.10.2 [Student Notification Requirement.]{.underline} Prior to
disclosing a student\'s educational records in response to a subpoena,
the educational institution must make a reasonable effort to notify the
student of the subpoena in advance of compliance, so that the student
may seek protective action, unless the subpoena is issued for a law
enforcement purpose and the issuing agency has ordered that the
existence or the contents of the subpoena not be disclosed.

220.10.3 [TIGTA Subpoena Requests Under FERPA.]{.underline} S/A's
requiring educational records under FERPA will detail the need for such
records on TIGTA Form OI S-001and clearly state whether the S/A
recommends that TIGTA order that the educational institution not
disclose the existence of the subpoena (or the information furnished in
response to the subpoena) to the student.