D.Md.: Ptf waived REP in bank records

The Right to Financial Privacy Act was passed in response to Miller, but bank customers can waive privacy in their account records during an investigation, aside from process being applied. Bond v. United States Postal Serv. Fed. Credit Union, 2015 U.S. Dist. LEXIS 165372 (D.Md. Dec. 9, 2015):

1) Waiver of the RFPA

The undisputed facts indicate that any requirements under the RFPA of written customer authorization or of obtaining a subpoena with customer notice were effectively waived.

It is a fundamental proposition that an individual may waive his or her privacy interests by, for example, consenting, even verbally, to a search by the Government. See Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973) (“[A] search authorized by consent is wholly valid.”); United States v. Seidman, 156 F.3d 542, 549 n.10 (4th Cir. 1998) (“Consent has often been recognized as sufficient to waive Fourth Amendment rights.”). Similarly, enforcement of certain statutory private rights of action can be waived by prospective plaintiffs, even in areas in which constitutionally-guaranteed rights are at stake. See generally Town of Newton v. Rumery, 480 U.S. 386 (holding that the right to bring a civil rights claim under 42 U.S.C. § 1983 could be voluntarily waived in agreement between prosecutor and criminal defendant); United States v. Purdue Pharma L.P., 600 F.3d 319 (4th Cir. 2010) (holding that release of claims under the False Claims Act was not per se invalid). There is no reason why the same rationale should not apply with respect to the RFPA. The RFPA establishes a statutory right of privacy concerning certain records maintained by a financial institution, but nothing in the Act precludes the ability of a customer to waive its requirements either at the time of or after a disclosure.⁴ Though other courts have not directly addressed this issue,⁵ the Court concludes that liability for non-compliance with the RFPA can indeed be waived, especially where a “customer,” in this case one of the two named joint account holders, unambiguously consents to the disclosure. In such a circumstance, the public policy concerns underlying the RFPA — maintaining the privacy of one’s financial records — are not jeopardized, in as much as the “customer” him- or herself has willingly decided to abandon those privacy interests and protections.

4. Notably, the RFPA bars a financial institution from requiring customers to prospectively authorize disclosures as a condition of doing business. See 12 U.S.C. § 3404(b). This provision, however, does not preclude a customer from voluntarily and based on his or her own decision waiving the requirements of the Act. Indeed, the statutory provision does not address the situation in which express waiver of the RFPA occurs, either at the time of or after a particular disclosure.

5 The Court is aware of only one federal case addressing waiver under the RFPA. In Flowers v. First Hawaiian Bank, the Ninth Circuit held that a claimant had not as a matter of fact waived his right to file a complaint under the RFPA simply because he had notice of a government subpoena and did not object before his bank records were produced. 295 F.3d 966, 975 n.2 (9th Cir. 2002). In reaching this holding, the Ninth Circuit appears to have assumed without deciding that the RFPA could in some circumstances be waived.

It is critical to note that it was not the Government that initiated the Sunshine Fund investigation. Instead, Giberson, one of the named joint-account holders, approached the Government because, having reviewed statements addressed to her (and, to be sure, to Bond as well), was suspicious that her co-account holder was essentially using money of coworkers to cover personal expenses. Not only did Giberson consent to the disclosures to USPS-OIG; she requested that they be made and helped to facilitate them when her superiors became involved. Giberson’s consent to the release of records, albeit verbal, was clear, and has indeed been confirmed by written affidavit submitted to the Court after-the-fact. The Court finds that co-account holder Giberson’s initiation of the investigation, her personal role in turning over the records to USPS-OIG, and her express verbal authorization in advance for the release of additional Sunshine Fund records, constituted a waiver of any past or present claim for liability under the RFPA related to the October and April disclosures at issue in Counts I, II, and III of the Complaint.