When we receive a subpoena seeking information about one of our customers, are we supposed to notify the customer and wait for them to respond before responding to the subpoena?

Yes, you generally must notify a customer of a subpoena by sending them a copy, subject to the caveats discussed below, but you do not need to wait for the customer to respond after notifying them of the subpoena.

The Illinois Banking Act requires banks to send a copy of a subpoena to a customer before responding, “unless the bank is specifically prohibited from notifying the person by order of court or by applicable State or federal law.” However, the Illinois Banking Act does not require a bank to wait for a customer’s response before responding to a subpoena after complying with this notification requirement.

By contrast, when the federal government issues a subpoena requesting financial information, the Right to Financial Privacy Act prohibits banks from responding to the subpoena until the federal agency or department seeking the information has certified in writing that it has complied with the Act’s requirements — which include a requirement that ten days have passed since it served a notice of the subpoena on the customer (or fourteen days have passed since the notice was mailed) and the customer has not filed a motion to quash the subpoena. These requirements apply to subpoenas issued by the federal government for the financial records of individual customers and partnerships of five or fewer individuals.

For resources related to our guidance, please see:

Illinois Banking Act, 205 ILCS 5/48.1(c) (“[A] bank may not disclose to any person, except to the customer or his duly authorized agent, any financial records or financial information . . . unless: . . . (2) the financial records are disclosed in response to a lawful subpoena, summons, warrant, citation to discover assets, or court order which meets the requirements of subsection (d) of this Section; . . .”)

Illinois Banking Act, 205 ILCS 5/48.1(d) (“A bank shall disclose financial records under paragraph (2) of subsection (c) of this Section under a lawful subpoena, summons, warrant, citation to discover assets, or court order only after the bank sends a copy of the subpoena, summons, warrant, citation to discover assets, or court order to the person establishing the relationship with the bank, if living, and, otherwise the person’s personal representative, if known, at the person’s last known address by first class mail, postage prepaid, through a third-party commercial carrier or courier with delivery charge fully prepaid, by hand delivery, or by electronic delivery at an email address on file with the bank (if the person establishing the relationship with the bank has consented to receive electronic delivery and, if the person establishing the relationship with the bank is a consumer, the person has consented under the consumer consent provisions set forth in Section 7001 of Title 15 of the United States Code), unless the bank is specifically prohibited from notifying the person by order of court or by applicable State or federal law. A bank shall not mail a copy of a subpoena to any person pursuant to this subsection if the subpoena was issued by a grand jury under the Statewide Grand Jury Act [725 ILCS 215/1 et seq.].”)

Right to Financial Privacy Act, 12 USC 3403 (“(a) Release of records by financial institutions prohibited. No financial institution, or officer, employees, or agent of a financial institution, may provide to any Government authority access to or copies of, or the information contained in, the financial records of any customer except in accordance with the provisions of this chapter.

(b) Release of records upon certification of compliance with chapter. A financial institution shall
not release the financial records of a customer until the Government authority seeking such
records certifies in writing to the financial institution that it has complied with the applicable
provisions of this chapter.”)

Right to Financial Privacy Act, 12 USC 3402 (“Except as provided by section 3403(c) or (d), 3413, or 3414 of this title, no Government authority may have access to or obtain copies of, or the information contained in the financial records of any customer from a financial institution unless the financial records are reasonably described and . . . (2) such financial records are disclosed in response to an administrative subpena or summons which meets the requirements of section 3405 of this title . . .”)

Right to Financial Privacy Act, 12 USC 3405 (“A Government authority may obtain financial records under section 3402(2) of this title pursuant to an administrative subpena or summons otherwise authorized by law only if—

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(2) a copy of the subpena or summons has been served upon the customer or mailed to his last known address on or before the date on which the subpena or summons was served on the financial institution together with the following notice which shall state with reasonable specificity the nature of the law enforcement inquiry . . .

(3) ten days have expired from the date of service of the notice or fourteen days have expired from the date of mailing the notice to the customer and within such time period the customer has not filed a sworn statement and motion to quash in an appropriate court, or the customer challenge provisions of section 3410 of this title have been complied with.”)

Right to Financial Privacy Act, 12 USC 3401(3) (“‘Government authority’ means any agency or department of the United States, or any officer, employee, or agent thereof . . .”)

Right to Financial Privacy Act, 12 USC 3401 (“(4) ‘person’ means an individual or a partnership of five or fewer individuals; (5) ‘customer’ means any person or authorized representative of that person who utilized or is utilizing any service of a financial institution, or for whom a financial institution is acting or has acted as a fiduciary, in relation to an account maintained in the person’s name.”)