§ 4.37 Persons and entities with access to OCC information; prohibition on dissemination. ( a ) *Current and former OCC employees or agents; former OTS employees or agents* — ( 1 ) *Generally.* Except as authorized by this subpart or otherwise by the OCC, no current or former OCC employee or agent or former OTS employee or agent, may, in any manner, disclose or permit the disclosure of any non-public OCC information to anyone other than an employee or agent of the Comptroller for use in the performance of OCC duties.
( 2 ) *Duty of person served.* Any current or former OCC employee or agent or former OTS employee or agent, subpoenaed or otherwise requested to provide information covered by this subpart must immediately notify the OCC as provided in this paragraph. The OCC may intervene, attempt to have the compulsory process withdrawn, and register appropriate objections when a current or former OCC employee or agent or former OTS employee or agent, receives a subpoena and the subpoena requires the current or former employee or agent to appear or produce OCC information. If necessary, the current or former employee or agent must appear as required and respectfully decline to produce the information sought, citing this subpart as authority and United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951). The current or former OCC employee or agent or former OTS employee or agent, must immediately notify the OCC if subpoenaed or otherwise asked for non-public OCC information: ( i ) In a civil action, by notifying the Director of the OCC's Litigation Division at the Washington office; or
( ii ) In a criminal action, by notifying the appropriate district counsel for current and former district employees or agents; or the Director of the OCC's Enforcement Division at the Washington office, for current and former Washington employees or agents and former OTS employees or agents.
( b ) *Non-OCC employees or entities* — ( 1 ) *Generally.* ( i ) Without OCC approval, no person, national bank, Federal savings association, or other entity, including one in lawful possession of non-public OCC information under paragraph (b)(2) of this section, may disclose information covered by this subpart in any manner, except: ( A ) After the requester has sought the information from the OCC pursuant to the procedures set forth in this subpart; and
( B ) As ordered by a Federal court in a judicial proceeding in which the OCC has had the opportunity to appear and oppose discovery.
( ii ) Any person who discloses or uses non-public OCC information except as expressly permitted by the Comptroller of the Currency or as ordered by a Federal court, under paragraph (b)(1)(i) of this section, may be subject to the penalties provided in 18 U.S.C. 641.
( 2 ) *Exception for national banks and Federal savings associations.* When necessary or appropriate for business purposes, a national bank, Federal savings association, or holding company, or any director, officer, or employee thereof, may disclose non-public OCC information, including information contained in, or related to, OCC reports of examination, to a person or organization officially connected with the bank or Federal savings association as officer, director, employee, attorney, auditor, or independent auditor. A national bank, Federal savings association, or holding company or a director, officer, or employee thereof, may also release non-public OCC information to a consultant under this paragraph if the consultant is under a written contract to provide services to the bank or Federal savings association and the consultant has a written agreement with the bank or Federal savings association in which the consultant: ( i ) States its awareness of, and agreement to abide by, the prohibition on the dissemination of non-public OCC information contained in paragraph (b)(1) of this section; and
( ii ) Agrees not to use the non-public OCC information for any purpose other than as provided under its contract to provide services to the bank or Federal savings association.
( 3 ) *Duty of person or entity served.* Any person, national bank, Federal savings association, or other entity served with a request, subpoena, order, motion to compel, or other judicial or administrative process to provide non-public OCC information shall: ( i ) Immediately notify the Director of the OCC's Litigation Division at the Washington, DC office and inform the Director of all relevant facts, including the documents and information requested, so that the OCC may intervene in the judicial or administrative action if appropriate;
( ii ) Inform the requester of the substance of these rules and, in particular, of the obligation to follow the request procedures in §§ 4.33 and 4.34; and
( iii ) At the appropriate time, inform the court or tribunal that issued the process of the substance of these rules.
( 4 ) *Actions of the OCC following notice of service.* Following receipt of notice pursuant to paragraph (b)(3) of this section, the OCC may direct the requester to comply with §§ 4.33 and 4.34, intervene in the judicial or administrative action, attempt to have the compulsory process withdrawn, or register other appropriate objections.
( 5 ) *Return of records.* The OCC may require any person in possession of OCC records to return the records to the OCC.
( c ) *Disclosure to government agencies.* When not prohibited by law, the Comptroller may make available to the Board of Governors of the Federal Reserve System, the Federal Deposit Insurance Corporation, and, in the Comptroller's sole discretion, to certain other government agencies of the United States and foreign governments, state agencies with authority to investigate violations of criminal law, and state bank and state savings association regulatory agencies, a copy of a report of examination, testimony, or other non-public OCC information for their use, when necessary, in the performance of their official duties. All non-public OCC information made available pursuant to this paragraph is OCC property, and the OCC may condition its use on appropriate confidentiality protections, including the mechanisms identified in § 4.38.
( d ) *Intention of OCC not to waive rights.* The possession by any of the entities or individuals described in paragraphs (a), (b), and (c) of this section of non-public OCC information does not constitute a waiver by the OCC of its right to control, or impose limitations on, the subsequent use and dissemination of the information.
[60 FR 57322, Nov. 15, 1995. Redesignated and amended at 63 FR 62929, Nov. 10, 1998; 64 FR 29217, June 1, 1999; 75 FR 75576, Dec. 3, 2010; 76 FR 43563, July 21, 2011; 85 FR 42640, July 14, 2020]