413

Court Ordered Delay of Notice Procedure

Section 3409(a) of the Act, authorizes a court to grant ex parte a delay of up to 90 days (which can then be extended for additional periods of 90 days) of the customer notice required in cases of judicial subpoenas, administrative summons, and formal written requests, as well as in connection with search warrants and interagency transfers of financial records. In the case of grand jury subpoenas, which are exempt from the Act, 12 U.S.C. § 3413(i) allows a court to order a financial institution to delay giving notice to the customer that the records have been subpoenaed. To obtain an order delaying customer notice, the government agency must make a showing to a magistrate or district judge that: (1) the investigation in connection with which the records are sought is within the agency's jurisdiction; (2) there is "reason to believe" that the records sought are relevant to the investigation; and (3) there is "reason to believe" that customer notice would result in (a) danger to the physical safety of any person, (b) flight from prosecution, (c) destruction of evidence, (d) intimidation of witnesses, or (e) some other serious jeopardy to the investigation or trial of comparable degree. Renewals of the delay period may be granted upon the same showing of necessity. (See Matter of Thirty-Nine Administrative Subpoenas, 754 F. Supp. 5 (D.Mass. 1990) (The court rejected an application to delay notice on thirty-nine administrative subpoenas because the government did not specifically show how disclosure would impede an investigation). "Reason to believe," as it is used in 12 U.S.C. § 3410 and elsewhere in the Act, is a lower standard than probable cause; it would, for example, permit access where the only information available is an anonymous "tip." See 124 Cong. Rec. H 11737 (daily ed. October 5, 1978) (remarks of Rep. Pattison and Rep. La Falce) ("'Reasonable belief' and 'reason to believe' mean the same thing. 'Reasonable belief' does not mean 'probable cause.' We all agree that probable cause is far too high a standard to meet in the early stages of an investigation.") In addition to permitting the government to postpone notification to the customer, any court order under this section will also prohibit the financial institution from disclosing to the customer that records are being sought. 12 U.S.C. § 3409(a) provides that an application for courtordered delay of customer notice may be filed in any "appropriate court." Since these proceedings are by definition ex parte, there is no reason why they cannot be brought in the United States district court where either the agency or the financial institution is located. It generally would be preferable, however, to obtain the order from the court which has personal jurisdiction over the financial institution. The suggested forms for an ex parte delay of notice are Form DOJ-467 and delay of notice order Form DOJ-468.