(h) Records of receiver or liquidator of assets. If a requested record is held by the Corporation in its capacity as the receiver of a closed insured bank or the liquidator of assets acquired from an open or closed insured bank, upon receipt of a request for the record the FDIC will inform the requester of the capacity in which it holds such record and shall forward the request to the FDIC's Division of Liquidation for processing and disposition. Disclosure of such records shall be subject to appropriate Federal or State law applicable to FDIC as receiver or liquidator as well as to the determination of any Federal or State court having jurisdiction over FDIC or over such record. Denials of requests may be appealed to FDIC's General Counsel (or designee) within 30 business days following receipt of notification of the denial.

[47 FR 39131, Sept. 7, 1982]

§ 309.6 Disclosure of exempt records by FDIC personnel.

(a) Exempt records. The provisions of § 309.6 apply to any records which are exempt from disclosure under § 309.5(c) regardless of the fact that such records may be subject to disclosure under the Privacy Act of 1974 (5 U.S.C. 552a) or other Federal statute, any applicable regulation of the FDIC or any other Federal agency having jurisdiction thereof, or any directive or order of any court of competent jurisdiction.

(b) Disclosure prohibited. Except as provided in this § 309.6 or by Part 310,5 no officer, employee, or agent of the Corporation shall disclose or permit the disclosure of any exempt records, or information contained therein, to any persons other than those officers, employees, or agents of the Corporation who have a need for such records in the performance of their official duties.

(c) Disclosure authorized. Exempt records of the Corporation may be disclosed in accordance with the following conditions and requirements. Except as otherwise provided hereaf

"The procedures for disclosing records under the Privacy Act are separately set forth in Part 310.

ter,

by

disclosures authorized

§ 309.6(c)(1), (2)(i), (4) (i) and (ii), and (5) may be made on a routine or periodic basis. Routine or periodic disclosures may be made under the authority of § 309.6(c)(3), (4)(iii), and (6) without any further request only if a written request for the records is received which asks that the record be furnished to the requestor on a routine or periodic basis and the Corporation employee authorized to disclose the record determines that routine or periodic disclosure is appropriate. Except as otherwise provided in § 309.6(c)(3) or (4), no disclosure of customer financial records on a routine or periodic basis may be made to a Federal agency under § 309.6(c)(3) or (4) unless certification and notice as required by those sections are made with each separate disclosure.

(1) Reports of examination and other exempt records-disclosure to bank. The Director of the Corporation's Division of Bank Supervision, or any one designated by him in writing, may disclose to any director or authorized officer, employee or agent of any bank, information contained in, or copies of, reports of any examination of the bank and other exempt records pertaining to that bank.

and

(2) Reports of examination other exempt records-disclosure to State banking agencies. (i) The Director of the Corporation's Division of Bank Supervision, or anyone designated by him in writing, may disclose to any authorized officer or employee of any State agency or authority which exercises general supervision over banks copies of any report of examination or other exempt records to the extent the report or records pertain to a State chartered bank supervised by the agency or authority.

(ii) The Director of the Corporation's Division of Bank Supervision, or anyone designated by him in writing, may disclose to any authorized officer or employee of any State agency or authority which exercises general supervision over banks copies of any exempt Corporation records pertaining to a bank or institution which the agency or authority does not supervise. Before any such information may be released, it is the responsibility of

the Corporation employee authorized to disclose the information to make an affirmative determination that the requestor is authorized to request the records on behalf of the agency or authority and that the records are requested for a legitimate bank supervisory or regulatory purpose.

and

(3) Reports of examination other exempt records-disclosure to Federal financial institution supervisory agencies. (i) Except as provided in paragraph (c)(3)(ii) of this section, the Director of the Corporation's Division of Bank Supervision, or anyone designated by him in writing, may disclose to any officer or employee of the Comptroller of the Currency, the Board of Governors of the Federal Reserve System, any Federal Reserve Bank, the Federal Home Loan Bank Board, the Federal Savings and Loan Insurance Corporation, the Secretary of the Treasury, and the National Credit Union Administration any report of examination of a bank or any other exempt records. (ii) Examination reports or other exempt records containing information derived from customer financial records may be disclosed to any agency listed in paragraph (c)(3)(i) of this section if (A) the General Counsel, or anyone he designates in writing, has determined that disclosure is required by law; or (B) the requesting agency has authority to examine the financial condition or business operations of the bank which maintain the records and states in its written request for disclosure the statutory basis for this authority; or (C) the information derived from bank customer financial records is deleted or rendered unidentifiable with respect to any particular customer; or (D) the certification and notice requirements as set out in § 309.6(c)(4)(iv)(B) are met.6 (iii) Before information is released pursuant to § 309.6(c)(3), it is the responsibility of the Corporation employee au

"In addition, examination reports or other exempt records containing information derived from customer financial records may be disclosed to the Secretary of the Treasury where the request is in connection with the Bank Secrecy Act or the Currency and Foreign Transactions Reporting Act (Pub. L. 91-508, Titles I and II).

thorized to disclose the information to make a determination that the person making the request is authorized to request the record on behalf of the requesting agency and that the records are requested for a legitimate financial institution supervisory or regulatory purpose.

(4) Reports of examination and other exempt records-disclosure to non-financial institution supervisory agencies. (i) Reports of apparent criminal irregularities pertaining to suspected violations of law which affect the safety or soundness of a bank may be disclosed to a federal prosecuting or investigatory authority without giving notice and certification as set out in § 309.6(c)(4)(iv)(B): Provided, That the contents of the report are limited to only the following information: The name(s) and address(es) of the suspect(s) and his/her (their) relationship with the financial institution or supervisory agency, if any; the identity of the financial institution(s) the specific office(s) involved; offense(s) suspected; the name(s) and address(es) of the account holder(s) and the account number(s) and type(s) of account(s) in which evidence of the suspected offense(s) is located; and a general description (dates and any suspicious circumstances) of the transaction(s) involved in the suspected offenses."

or

(ii) The Director of the Corporation's Division of Bank Supervision, or anyone designated by him in writing, may disclose to the proper Federal or State prosecuting or investigatory authorities copies of exempt records pertaining to irregularities discovered in banks which are believed to constitute violations of any federal or state civil or criminal law, or unsafe or unsound banking practices, Provided, That whenever copies of exempt records are disclosed to federal prosecuting or investigatory authorities that are customer financial records, notice and

"This listing of information has been adopted in accordance with guidelines provided to the FDIC by the Department of Justice in a letter dated July 17, 1979 to FDIC Chairman Sprague and signed by United States Attorney General Benjamin K. Civiletti.

out

in

certification as set § 309.6(c)(4)(iv)(B) are made. (iii) Subject to the restrictions contained in paragraph (c)(4)(iv) of this section pertaining to disclosure of customer financial records to federal agencies, the Director of the Corporation's Division of Bank Supervision, or anyone designated by him in writing, may disclose to any authorized officer or employee of any Federal or State agency or authority, for good cause shown, reports of any examination of a bank or other exempt records. Such records shall be disclosed only in response to a written request which: (A) Is signed by an authorized official of the agency making the request; (B) identifies the record or records to which access is requested; and (C) gives the reasons for the request.

(iv) The Director of the Corporation's Division of Bank Supervision, or anyone he designates in writing, may disclose information known to have been derived from customer financial records to any federal agency: Provided, That (A) the General Counsel, or anyone he designates in writing, has determined that disclosure is required by law; or (B) disclosure is pursuant to a written request that indicates the information is relevant to a legitimate law enforcement inquiry within the jurisdiction of the requesting agency and: (1) The Director of the Division of Bank Supervision, or anyone designated by him in writing, certifies pursuant to section 1112(a)9 of the Right to Financial Privacy Act of 1978 (12 U.S.C. 3401 et seq.) that the records are believed relevant to a legitimate law enforcement inquiry within the jurisdiction of the receiving agency and (2) a copy of such certification and the notice required by sec

The form of certification generally is as follows. Additional information may be added.

Pursuant to section 1112(a) of the Right to Financial Privacy Act of 1978 (12 U.S.C. § 3412), I, [name and appropriate title] hereby certify that the financial records described below were transferred to (agency or department) in the belief that they were relevant to a legitimate law enforcement inquiry, within the jurisdiction of the receiving agency.

tion 1112(b) of the Right to Financial Privacy Act of 1978 is sent within fourteen days of the disclosure to the customer whose records are disclosed 10 or (C) the information derived from bank customer financial records is deleted or rendered unidentifiable with any particular customer; or (D) the information is sought by the General Accounting Office in connection with an investigation, examination, or audit directed at a Federal agency; or (E) the request falls within section 1113(g) or section 1113(h)(1)(B) of the Right to Financial Privacy Act. Notwithstanding language of § 309.6(c)(4)(iv)(B), a written request is not required for the Director of the Division of Bank Supervision, or anyone he designates in writing, to disclose records pursuant

the

to § 309.6(c)(4)(iv)(B) so long as certification and notice as required by that subsection are made.

(5) Evaluations of bank data centers, bank service corporations and data centers-disclosure to servicers and to serviced institutions. The Director of the Corporation's Division of Bank Supervision, or anyone designated by him in writing, may disclose copies of any Corporation examination report of a bank data center, a bank service corporation or any other data center that provides data processing or related services to an insured institution (hereinafter referred to as "data center") to: (i) The examined data center; (ii) any insured institution that

Copies of, or information contained in, your financial records lawfully in the possession of the Federal Deposit Insurance Corporation have been furnished to (agency or department) pursuant to the Right to Financial Privacy Act of 1978 for the following purpose: If you believe

that this transfer has not been made to further a legitimate law enforcement inquiry, you may have legal rights under the Right to Financial Privacy Act of 1978 or the Privacy Act of 1974.

10 Whenever a federal agency has obtained a court-ordered delay of the customer notice, the notice shall be sent immediately upon the expiration of the court-ordered delay.

receives data processing or related services from the examined data center; (iii) any State agency or authority which exercises general supervision over an institution serviced by the examined data center; and (iv) any Federal financial institution supervisory agency which exercises general supervision over an institution serviced by the examined data center. The Federal supervisory agency may disclose any such examination report received from the Corporation to an insured institution over which it exercises general supervision and which is serviced by the examined data center.

(6) Reports of examination and other exempt records-disclosure to third parties. Except as otherwise provided in §§ 309.6(c)(1) through 309.6(c)(5), the Director of the Corporation's Division of Bank Supervision, or anyone designated by him in writing, may disclose copies of any report of examination of a bank or data center or other exempt records to any third party where requested to do so in writing. Any such written request shall: (i) Specify the record or records to which access is requested; and (ii) give the reasons for the request. Any Corporation employee authorized to disclose exempt Corporation records to third parties may disclose the records only upon determining that good cause exists for the disclosure. Either prior to or at the time of any disclosure, the Corporation employee shall impose such terms and conditions as he deems necessary to protect the confidential nature of the record, the financial integrity of any bank to which the record relates, and the legitimate privacy interests of any individual named in such records.

bank to which the report or record pertains. Any such request shall specify the record sought, the party's interest therein and the party's relationship to the bank to which the record relates.

(ii) The Director of the Corporation's Division of Bank Supervision may authorize any third party, including Federal or State agencies, that has received a copy of a Corporation report of examination or other exempt record to disclose such report or exempt record to another party or agency. such authorization may be given only in response to a written request from the party that has custody of the copy of the Corporation report or record. Any such request shall specify the report or record sought to be disclosed and the reasons why disclosure is necessary.

(iii) Any subsidiary bank of a bank holding company may reproduce and furnish a copy of any report of examination of the subsidiary bank to the parent holding company without prior approval by the Director of the Division of Bank Supervision and any bank may reproduce and furnish a copy of any report of examination of the disclosing bank to a majority shareholder if the following conditions are met:

(A) The parent holding company or shareholder owns in excess of 50% of the voting stock of the bank or subsidiary bank;

(B) the board of directors of the bank or subsidiary bank at least annually by resolution authorizes the reproduction and furnishing of reports of examination (the resolution shall (1) specifically name the shareholder or parent holding company, (2) the address to which the reports are to be sent, (3) indicate that all reports furnished pursuant to the resolution remain the property of the Federal Deposit Insurance Corporation and are not to be disclosed or made public in any manner without the prior written approval of the Director of the Division of Bank Supervision as provided in § 309.6(c)(7)(ii) of the Corporation's regulations);

(C) a copy of the resolution authorizing disclosure of the reports is sent

to the shareholder or parent holding company; and

(D) the minutes of the board of directors of the bank or subsidiary bank for the meeting immediately following disclosure of a report contain a notation that (1) disclosure was made, (2) the date of the report which was disclosed, (3) to whom the report was sent, and (4) the date the report was disclosed.

(iv) With respect to any disclosure that is authorized under § 309.6(c)(7), the Director of the Corporation's Division of Bank Supervision shall only permit disclosure of records upon determining that good cause exists. If the report of examination or other exempt record contains information derived from bank customer financial records, disclosure is to be authorized only upon the condition that the requesting party and the party releasing the records comply with any applicable provision of the Right to Financial Privacy Act of 1978.

an

(8) Production of exempt records and testimony of Corporation personnel. (i) The Corporation's General Counsel, or anyone designated by him in writing, may (A) produce or authorize the production of any exempt record in response to a valid judicial subpoena, court order, or other legal process, and (B) authorize any officer, employee, or agent of the Corporation to appear and testify regarding exempt record at any administrative or judicial hearing or proceeding where he has been served with a valid subpoena, court order, or other legal process requiring him to testify. Customer financial records may not be disclosed to any federal agency that is not a Federal financial supervisory agency pursuant to paragraph (c)(8)(i) of this section unless notice to the customer and certification as required by Section 1112 (a) and (b) of the Right to Financial Privacy Act of 1978 have been given except where disclosure is in connection with a proceeding to which the Federal agency, employee, officer, or agent, and the customer are parties, or disclosure is in response to a grand jury subpoena, or disclosure is in accordance with procedures authorized by the Internal Revenue Code, or the records are sought pursuant to an administrative subpoena issued by an

administrative law judge in an adjudicatory proceeding subject to 5 U.S.C. 554 to which the receiving federal agency, employee, officer, or agent, and the customer are parties.

(ii) The General Counsel, or anyone designated by him in writing, may produce or authorize the production of any exempt record sought in connection with any hearing or proceeding without the service of a judicial subpoena, or other legal process requiring production, if he determines that the records are relevant to the hearing or proceeding and that production is in the best interests of justice. In the case of customer financial records, disclosure to any federal agency pursuant to paragraph (c)(8)(ii) of this section that is not a Federal financial supervisory agency may be made only when the records are sought under the Federal Rules of Civil or Criminal procedure or comparable rules of other courts and in connection with litigation to which the receiving Federal agency, employee, officer, or agent, and the customer are parties. Where the General Counsel authorizes the production of any exempt record or the testimony of any officer, employee, or agent of the Corporation relative thereto pursuant to § 309.6(c)(8), he shall limit the authorization to so much of the record or testimony as is relevant to the issues at the hearing or proceeding, and he shall give his authorization only upon fulfillment of such conditions as he deems necessary to protect the confidential nature of the record consistent with any requirement that it be produced and made a part of the record of the hearing or proceeding.

(9) Disclosures by division or office heads. Except as otherwise provided in paragraphs (c)(1) through (c)(8) of this section, each head (or designee) of a division or office may disclose any exempt record which is in the custody of and was created by or originated in the division or office. Any such disclosure shall be made only: (i) Upon receipt of a written request specifying the record sought and the reason why access to the record is necessary; and (ii) after the division or office head (or designee) determines that disclosure of record is in the public interest and