Webinar presenters Rich Goldberg, Andrea Higgins, and Jenefer Duane answered a number of your questions after their presentation, Taking Your Elder Financial Abuse Investigations to the Next Level: Suspicious Activity Reports. Here are just a few of their responses.
Audience Question: Understanding that direct access to suspicious activity reports is restricted to sworn law enforcement personnel, how should investigators go about requesting SARs?
Andrea Higgens: Sworn law enforcement investigators should request SARs directly from FinCEN, the Financial Crimes Enforcement Network, a division of the US Treasury Department that collects and regulates the dissemination of SARs. The request form to use with FinCEN is an attachment to this presentation. If you aren’t sure who your agency or state FinCEN Coordinator is, please contact FRC@fincen.gov and request that information.
Once a law enforcement investigator receives the requested SARs from FinCEN, they can request the entire file related to the SAR from the financial institution or other agency that filed the SAR. While the SAR itself cannot be shared with non-law enforcement personnel, the information from the SAR file can be shared with investigative partners such as adult protective services.
Jenefer Duane: Sworn law enforcement investigators can also request SARs through their state Elder Justice Coordinator in the United States Attorney’s office or through a local law enforcement agency or prosecutor’s office that may have access to the FinCEN Portal.
Audience Question: How does a local law enforcement officer request the SAR file? What should I do if the filer won’t provide the information?
Andrea Higgens: The narrative portion of most SARs contains instructions for how to request the SAR file in its entirety. Typically it is an email address or a fax number. When making a request for a SAR file, I include my name and agency information, the fact that I am a sworn law enforcement officer, my criminal case number, the name of the subject of the SAR, and the BSA Number listed on the SAR. That BSA Number allows the financial institution to confirm they are providing you with the correct file.
Filers are required to keep reports and files related to the SAR for five years, and they are also required to give you all of the information in the SAR file without a warrant or a court order. I’ve never had anything other than complete cooperation from filers, but if for some reason the filer is uncooperative, reach out to your FinCEN coordinator and request their assistance.
Jenefer Duane: Be sure to include the specific BSA number for the SAR you are requesting. Since this information is highly restricted, filers are very careful to make sure they are only disclosing what is required and to an authorized recipient.
Richard Goldberg: If a law enforcement officer who has lawful access to SARs is unable to get the financial institution to provide that supporting documentation without a subpoena or search warrant, then they should reach out to FinCEN, and FinCEN should be able to help.
Audience Question: Is a SAR subject to Freedom of Information Act requests?
Richard Goldberg: I cannot give legal advice to anybody who is asking if they could get a SAR through a Freedom of Information Act.
Federal law imposes severe, and at times, criminal penalties for disclosing SARs. These protections allow financial institutions to provide those crucial reports of potential criminal activity to the government, everything from fraud, elder fraud, identity theft, human trafficking, terrorism, so forth
Jenefer Duane: Without providing any legal advice, it is my understanding under the Bank Secrecy Act that suspicious activity reports filed with FinCEN are not subject to FOIA requests. They are considered the same as information provided by a confidential informant.
There have been recent cases of individuals in different law enforcement roles with access to SARs who have been charged for improper disclosure, which is a federal crime. I don’t know the outcomes of those cases, but improper disclosure is a very serious violation of federal law. Law enforcement officers who use SARs or have access to SARs should be very aware of the limitations of sharing the fact that one even exists on a particular case, let alone anything contained in it.
Audience Question: Should APS investigators receive a financial exploitation case asks banking institutions to file a SARs report?
Richard Goldberg: Depending on state law, the threshold for reporting suspected elder abuse to APS may be higher or lower than the threshold for filing a SAR with FinCEN. There’s no harm in an APS representative suggesting that an incidence of elder fraud might be the subject of a Suspicious Activity Report. The bank wouldn’t be able to report back to APS, “Yes, okay, we have, in fact, filed a SAR on this.”
Any type of reminder to a financial institution that it is helpful to file suspicious activity reports when there are incidences of elder exploitation, financial or otherwise, there’s no harm in that.
Jenefer Duane: I just wanted to say that this really underscores the need and the value of collaboration and cross-training between entities. If you have an MDT or some other type of elder justice network, you should definitely reach out and engage your local financial services companies. Having cross-training, having an open conversation, perhaps, for example, the district attorney’s office would host a round table or a network meeting, these are all great ways to work collaboratively with financial services companies.
Or there could be training where a Bank Secrecy Act (BSA) officer or a compliance officer of a financial institution could attend a Network/MDT meeting to provide training on about the Act and how they engage with it to address suspicious transactions. They will not speak about a specific SAR concerning a particular matter, but they can talk generally about the Bank Secrecy Act. They can also speak about SARs generally and they can help to train your group on what their obligations are, what the filing thresholds are for what kinds of transactions, and for the different types of filers. Then you all can work out a way to improve cooperation and share information most effectively to support and protect older people from financial predators.
That is the key in building bridges of collaboration, building bridges that improve your vocabulary between entities. And that is what’s going to help you move faster and more efficiently in preventing and responding to the financial abuse of older people.
Audience Question: Could you repeat the contact information for FinCEN, especially the regional representative or the regional coordinator?
Andrea Higgens: The e-mail address to request information from FinCEN is email@example.com.
FinCEN also has a number of excellent resources on its website at www.fincen.gov.
Click Here to Watch a Recording of Taking Your Elder Financial Abuse Investigations to the Next Level: Suspicious Activity Reports.