Attorney General's Opinion
Attorney General, Richard Blumenthal
November 30, 2000
The Honorable Patricia Wilson-Coker
Department of Social Services
25 Sigourney Street
Hartford, CT 06106
Dear Commissioner Wilson-Coker:
In connection with the Department of Social Services’ (the "Department") Elder Financial Abuse Project (the "Project")1, your Department requested an opinion as to whether an employee of a financial institution2 who suspects that an elderly customer is the victim of financial exploitation may disclose the elderly customer’s financial information to the Department’s Protective Services for the Elderly (PSE).
For the reasons set forth below, we have concluded that federal and state confidentiality laws do not prevent employees of financial institutions from reporting suspected financial exploitation (or abuse, neglect, or abandonment) of an elderly person to PSE; that any employee making such a report is immune from civil or criminal liability, provided that the report is made in good faith; that the name of the employee and/or institution making the report shall not be disclosed unless in conjunction with a judicial proceeding; and that subsequent to making the initial report of suspected exploitation, the elderly customer’s financial information may not be provided to PSE without the written consent of the elderly person or his/her authorized representative, or in response to a subpoena, search warrant, or other court order.
PSE provides protective services, as necessary, in order to prevent the abuse, neglect, exploitation, or abandonment of elderly3 persons. "Exploitation" is defined as "the act or process of taking advantage of an elderly person by another person or caretaker whether for monetary, personal or other benefit, gain or profit." Conn. Gen. Stat. § 17b-450(4). The Project was initiated, in part, because financial institutions can be a key component in the prevention of financial exploitation of the elderly.
Financial exploitation of the elderly may also constitute larceny in the second degree, which includes the wrongful taking of "property, regardless of its nature or value . . . obtained by embezzlement, false pretenses or false promise and the victim of such larceny is sixty years of age or older . . . " Conn. Gen. Stat. § 53a-123.
PSE is authorized under Conn. Gen. Stat. § 17b-460 to make a written referral to the state’s attorney’s office "[i]f as a result of any investigation . . . a determination is made that a caretaker or other person has abused, neglected, or exploited or abandoned an elderly person . . . ." The state’s attorney’s office4 may then conduct whatever "further investigation, if any, is deemed necessary and . . . determine[s] whether criminal proceedings should be initiated . . . ."
While employees of financial institutions are not required to report suspected abuse, neglect, exploitation, or abandonment to PSE, Conn. Gen. Stat. § 17b-451(c) provides that "any person having reasonable cause to believe that an elderly person is being, or has been, abused, neglected, exploited or abandoned, or who is in need of protective services may report such information in any reasonable manner . . . ." (Emphasis supplied). Any person making such a report, or who "testifies in any administrative or judicial proceeding arising from such report shall be immune from any civil or criminal liability on account of such report or testimony, except for liability for perjury, unless such person acted in bad faith or with malicious purpose." Conn. Gen. Stat. § 17b-451(d). Accordingly, any financial institution employee who reports suspected financial exploitation of an elderly customer will be immune from civil or criminal liability, provided that the report is made in good faith.
Upon receipt of a report of suspected abuse, neglect, or exploitation, PSE is mandated to conduct a
This evaluation, as well as the original report made to PSE, and any other information in the PSE client file, are not considered public records and are not subject to the provisions of the Freedom of Information Act. Conn. Gen. Stat. § 17b-452(c). In fact,
Accordingly, the name of the financial institution employee who makes the report will in most cases remain anonymous.
In carrying out its statutory duties, including its initial investigation, PSE "shall have access to all relevant records, except that records which are confidential to an elderly person shall only be divulged with the written consent of the elderly person or his representative. The authority of [PSE] shall include . . . the right to initiate or otherwise take those actions necessary to assure the health, safety and welfare of any elderly person, subject to any specific requirement for individual consent . . . ." (Emphasis supplied.) Conn. Gen. Stat. §17b-454.
Financial records are confidential records under both federal and state law and, with limited exceptions, written consent of the customer is required before their release to third parties. The United States Supreme Court has held that there is no constitutionally protected privacy interest in financial records. United States v. Miller, 425 U.S. 435, 444-45, 96 S.Ct. 1619, 48 L.Ed. 2d 171 (1976). In response to that case, Congress enacted the Right to Financial Privacy Act ("RFPA")5, 12 U.S.C. §§ 3401 et. seq., which provides individuals a limited right to privacy by restricting the access of government authorities to customer financial records by requiring that notice and an opportunity to object be provided before release of financial information without customer consent. RFPA, however, clearly defines "government authority" as "any agency or department of the United States, or any officer, employee, or agent thereof." Thus, RFPA does not apply to the disclosure of a customer’s financial information to PSE, a state agency.
In the State of Connecticut, financial institutions are prohibited by state law from disclosing a customer’s financial records,6 except to the customer or the customer’s duly authorized agent, without the customer’s authorization. Conn. Gen. Stat. § 36a-42. The exceptions to this prohibition include disclosure to the Commissioner of Administrative Services or the Commissioner of Social Services pursuant to Conn. Gen. Stat. § 17b-137 under extremely limited circumstances,7 or "in response to a lawful subpoena, summons, warrant or court order as set forth in § 36a-43." In turn, § 36a-43 sets forth the procedures that must be followed to protect customers’ privacy when a financial institution is served with a subpoena, summons, warrant, or court order.
Specifically, 36a-43(a) provides that a certified copy of any subpoena, summons, warrant or court order served on a financial institution must also be served on the customer, at least ten days before the records are to be disclosed, unless a court order has been obtained waiving such service on the customer, or unless the subpoena was served by the Commissioner of Administrative Services or the Commissioner of Social Services in accordance with the provisions of § 17b-137. Section 36a-43(b) also provides that a customer may move to quash any subpoena, summons, warrant, or court order within that ten day period, and that production of the records is stayed until a court rules on the motion to quash. Finally, § 36a-42(d) provides that no financial institution will be held liable or criminally responsible for disclosure of financial records pursuant to a certificate, subpoena, summons, warrant or court order which on its face appears to have been issued upon lawful authority.
Furthermore, § 36a-44 provides that the general prohibitions on disclosure of financial records without customer consent are not applicable to certain government agencies, including "disclosures to appropriate officials of federal, state or local governments upon suspected violations of the criminal law" or "any other disclosure required under applicable state or federal law or authorized to be made to any regulatory or law enforcement agency under applicable state or federal law." § § 36a-44(7); 36a-44(13). However, these exceptions8 are inapplicable to PSE because the Department of Social Services’ subpoena power is specifically limited to the circumstances set forth in Conn. Gen. Stat. § 17b-137. Furthermore, neither the Department of Social Services, nor PSE, is a "law enforcement agency," which term refers to state, municipal, or local police. See, e.g., Conn. Gen. Stat. § 7-294a; §29-152k.
Conn. Gen. Stat. § 17b-451(b) provides that any report of suspected abuse, neglect, exploitation, or abandonment, shall contain the name and address of the involved elderly person; information regarding the nature and extent of the abuse, neglect, exploitation, or abandonment; and "any other information which the reporter believes might be helpful in an investigation of the case and the protection of such elderly person." (Emphasis supplied.) However, pursuant to the confidentiality provisions set forth above, financial institutions should limit the information provided to PSE in an initial report of suspected exploitation to the elderly customer’s name, and address,9 and the nature of the suspected exploitation, and should not disclose any further information unless provided with the consent of the customer or his authorized representative, or a subpoena, warrant, or other court order.
Accordingly, in investigating and evaluating a report of suspected financial exploitation, PSE should first attempt to obtain the elderly person’s written consent for the release of financial records. If, however, the elderly person refuses to consent, and PSE has reason to believe that the elderly person is "incapable of managing his personal or financial affairs" and not capable of providing consent, PSE is empowered to apply to the Probate Court for the appointment of a conservator, who can provide the necessary consent. Conn. Gen. Stat. § 17b-453(a). Additionally, if criminal violations are suspected, PSE should immediately inform the state’s attorney’s office.
If an appointed conservator is suspected of being the perpetrator of the suspected financial exploitation (or abuse, neglect, or abandonment), it may be appropriate for PSE to petition for the removal of the conservator and for an accounting of the conservator’s activities. PSE should in these instances proceed under the temporary conservatorship statute, and request that the probate court subpoena the elderly person’s financial records or order the elderly person or his or her authorized representative to produce them.10 Again, state law requires notice to the customer of the issuance of such a subpoena and a ten day opportunity to quash the subpoena, absent a court order otherwise.
In sum, financial institutions may report the suspected exploitation of an elderly customer to PSE, and may provide PSE with the customer’s name and address and the nature of the suspicious activity, but confidentiality laws constrain the release of the customer’s financial records, absent consent of the customer or his authorized representative or unless in response to a subpoena, summons, warrant, or court order.
Very truly yours,
Assistant Attorney General
1The Project is a cooperative effort among the Protective Services for the Elderly; the Area Agencies on Aging; the American Association of Retired Persons; the state police; and state financial institutions to curtail and prevent financial exploitation of the elderly. The Attorney General’s Office, which provides advice and representation to PSE, and the Chief State’s Attorney’s Office, which investigates criminal complaints of abuse and exploitation of the elderly, were asked to support the Project and attend the meetings in an advisory capacity.
2Conn. Gen. Stat. § 36a-41(1) defines “financial institution” as "a bank, Connecticut credit union, federal credit union and any other institution wherever chartered or organized that is authorized to accept deposits in this state."
3Conn. Gen. Stat. § 17b-450(1) defines an "elderly person" as "any resident of Connecticut who is sixty years of age or older."
4As you know, the Chief State’s Attorney’s Office has recently formed a unit that will be dedicated to the investigation and prosecution of crimes against the elderly, including financial exploitation. This memorandum does not address the ability of the Chief State’s Attorney’s Office or any law enforcement agency such as the state police, to procure financial records in the course of investigations or prosecution of criminal proceedings resultant from referrals from PSE or financial institutions. Generally, however, law enforcement agencies have broader authority to obtain such financial information because they can procure search warrants.
5Financial institutions must also comply with numerous other federal laws, many of which address the issue of consumer privacy and disclosure of financial records. See, e.g., Bank Secrecy Act, 12 USCS § § 1829b(a)(2).
6Conn. Gen. Stat. § 36a-41(2) defines "financial records" to include originals or copies of signature cards; statements, ledger cards or other records on any deposit or share account; or any check, draft, or money order; and any item other than a periodic or institutional charge.
7Conn. Gen. Stat. § 17b-137 mandates the disclosure of information regarding property of recipients of state aid, persons liable to support AFDC recipients, and recipients of child support services. Section 17b-137 does not authorize the disclosure of financial information concerning PSE clients.
8It should be noted that both of these exceptions allow for disclosure to the state’s attorney’s office, even though disclosure cannot be made to the Department of Social Services or PSE.
9A customer’s address is not a "financial record" as defined by Conn. Gen. Stat. §36a-41(2), and will remain confidential pursuant to Conn. Gen. Stat. §17b-452(e).
10Again, at the present time, the Department of Social Services’ administrative subpoena power is limited to disclosure of records concerning recipients of state aid, persons liable to support AFDC recipients, and recipients of child support enforcement services. See Conn. Gen. Stat. § 17b-137. Accordingly, any subpoena of financial records must be issued by a court, or by this office in conjunction with a pending proceeding, or by the Attorney’s Office in connection with its investigation of a referral by PSE.