HB1891 97TH GENERAL ASSEMBLY

LRB097 07104 CEL 47203 b

97TH GENERAL ASSEMBLY
State of Illinois
2011 and 2012
HB1891

Introduced , by Rep. Daniel Biss

SYNOPSIS AS INTRODUCED:

205 ILCS 5/48.1

from Ch. 17, par. 360

Amends the Illinois Banking Act. Provides that a bank shall utilize a form, statement, or writing to obtain a customer's consent to disclose any financial records or information obtained from financial records relating to that customer to non-affiliated third persons or parties. Provides criteria for banks to meet regarding the form, statement, or writing to obtain a customer's consent to disclose financial information relating to the customer's financial records. Provides that a bank shall not discriminate against or deny an otherwise qualified customer a financial product or financial service because the customer has not provided the consent to authorize the bank to disclose or share financial records or financial information obtained from financial records relating to that customer with any non-affiliated third person. Provides that a bank shall not be liable for failing to offer products and services to a customer solely because (i) that customer has failed to provide consent and the bank could not offer the product or service without consent and (ii) the customer has failed to provide consent.

A BILL FOR

AN ACT concerning regulation.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The Illinois Banking Act is amended by changing Section 48.1 as follows:

(205 ILCS 5/48.1) (from Ch. 17, par. 360)

Sec. 48.1. Customer financial records; confidentiality.

(a) For the purpose of this Section, the term "financial records" means any original, any copy, or any summary of:

(1) a document granting signature authority over a deposit or account;

(2) a statement, ledger card or other record on any deposit or account, which shows each transaction in or with respect to that account;

(3) a check, draft or money order drawn on a bank or issued and payable by a bank; or

(4) any other item containing information pertaining to any relationship established in the ordinary course of a bank's business between a bank and its customer, including financial statements or other financial information provided by the customer.

(b) This Section does not prohibit:

(1) The preparation, examination, handling or maintenance of any financial records by any officer, employee or agent of a bank having custody of the records, or the examination of the records by a certified public accountant engaged by the bank to perform an independent audit.

(2) The examination of any financial records by, or the furnishing of financial records by a bank to, any officer, employee or agent of (i) the Commissioner of Banks and Real Estate, (ii) after May 31, 1997, a state regulatory authority authorized to examine a branch of a State bank located in another state, (iii) the Comptroller of the Currency, (iv) the Federal Reserve Board, or (v) the Federal Deposit Insurance Corporation for use solely in the exercise of his duties as an officer, employee, or agent.

(3) The publication of data furnished from financial records relating to customers where the data cannot be identified to any particular customer or account.

(4) The making of reports or returns required under Chapter 61 of the Internal Revenue Code of 1986.

(5) Furnishing information concerning the dishonor of any negotiable instrument permitted to be disclosed under the Uniform Commercial Code.

(6) The exchange in the regular course of business of (i) credit information between a bank and other banks or financial institutions or commercial enterprises, directly or through a consumer reporting agency or (ii) financial records or information derived from financial records between a bank and other banks or financial institutions or commercial enterprises for the purpose of conducting due diligence pursuant to a purchase or sale involving the bank or assets or liabilities of the bank.

(7) The furnishing of information to the appropriate law enforcement authorities where the bank reasonably believes it has been the victim of a crime.

(8) The furnishing of information under the Uniform Disposition of Unclaimed Property Act.

(9) The furnishing of information under the Illinois Income Tax Act and the Illinois Estate and Generation-Skipping Transfer Tax Act.

(10) The furnishing of information under the federal Currency and Foreign Transactions Reporting Act Title 31, United States Code, Section 1051 et seq.

(11) The furnishing of information under any other statute that by its terms or by regulations promulgated thereunder requires the disclosure of financial records other than by subpoena, summons, warrant, or court order.

(12) The furnishing of information about the existence of an account of a person to a judgment creditor of that person who has made a written request for that information.

(13) The exchange in the regular course of business of information between commonly owned banks in connection with a transaction authorized under paragraph (23) of Section 5 and conducted at an affiliate facility.

(14) The furnishing of information in accordance with the federal Personal Responsibility and Work Opportunity Reconciliation Act of 1996. Any bank governed by this Act shall enter into an agreement for data exchanges with a State agency provided the State agency pays to the bank a reasonable fee not to exceed its actual cost incurred. A bank providing information in accordance with this item shall not be liable to any account holder or other person for any disclosure of information to a State agency, for encumbering or surrendering any assets held by the bank in response to a lien or order to withhold and deliver issued by a State agency, or for any other action taken pursuant to this item, including individual or mechanical errors, provided the action does not constitute gross negligence or willful misconduct. A bank shall have no obligation to hold, encumber, or surrender assets until it has been served with a subpoena, summons, warrant, court or administrative order, lien, or levy.

(15) The exchange in the regular course of business of information between a bank and any commonly owned affiliate of the bank, subject to the provisions of the Financial Institutions Insurance Sales Law.

(16) The furnishing of information to law enforcement authorities, the Illinois Department on Aging and its regional administrative and provider agencies, the Department of Human Services Office of Inspector General, or public guardians: (i) upon subpoena by the investigatory entity or the guardian, or (ii) if there is suspicion by the bank that a customer who is an elderly or disabled person has been or may become the victim of financial exploitation. For the purposes of this item (16), the term: (i) "elderly person" means a person who is 60 or more years of age, (ii) "disabled person" means a person who has or reasonably appears to the bank to have a physical or mental disability that impairs his or her ability to seek or obtain protection from or prevent financial exploitation, and (iii) "financial exploitation" means tortious or illegal use of the assets or resources of an elderly or disabled person, and includes, without limitation, misappropriation of the elderly or disabled person's assets or resources by undue influence, breach of fiduciary relationship, intimidation, fraud, deception, extortion, or the use of assets or resources in any manner contrary to law. A bank or person furnishing information pursuant to this item (16) shall be entitled to the same rights and protections as a person furnishing information under the Elder Abuse and Neglect Act, the Illinois Domestic Violence Act of 1986, and the Abuse of Adults with Disabilities Intervention Act.

(17) The disclosure of financial records or information as necessary to effect, administer, or enforce a transaction requested or authorized by the customer, or in connection with:

(A) servicing or processing a financial product or service requested or authorized by the customer;

(B) maintaining or servicing a customer's account with the bank; or

(C) a proposed or actual securitization or secondary market sale (including sales of servicing rights) related to a transaction of a customer.

Nothing in this item (17), however, authorizes the sale of the financial records or information of a customer without the consent of the customer.

(18) The disclosure of financial records or information as necessary to protect against actual or potential fraud, unauthorized transactions, claims, or other liability.

(19)(a) The disclosure of financial records or information related to a private label credit program between a financial institution and a private label party in connection with that private label credit program. Such information is limited to outstanding balance, available credit, payment and performance and account history, product references, purchase information, and information related to the identity of the customer.

(b)(l) For purposes of this paragraph (19) of subsection (b) of Section 48.1, a "private label credit program" means a credit program involving a financial institution and a private label party that is used by a customer of the financial institution and the private label party primarily for payment for goods or services sold, manufactured, or distributed by a private label party.

(2) For purposes of this paragraph (19) of subsection (b) of Section 48.l, a "private label party" means, with respect to a private label credit program, any of the following: a retailer, a merchant, a manufacturer, a trade group, or any such person's affiliate, subsidiary, member, agent, or service provider.

(c) Except as otherwise provided by this Act, a bank may not disclose to any person, except to the customer or his duly authorized agent, any financial records or financial information obtained from financial records relating to that customer of that bank unless:

(1) the customer has authorized disclosure to the person;

(A) A bank shall utilize a form, statement, or writing to obtain consent to disclose any financial records or financial information obtained from financial records relating to that customer to non-affiliated third persons as required. The form, statement, or writing shall meet all of the following criteria:

(i) the form, statement, or writing is a separate document, not attached to any other documents;

(ii) the form, statement, or writing is dated and signed by the customer;

(iii) the form, statement, or writing clearly and conspicuously discloses that by signing, the customer is consenting to the disclosure to non-affiliated third persons of financial records or financial information obtained from financial records relating to that customer;

(iv) the form, statement, or writing clearly and conspicuously discloses (a) that the consent will remain in effect until revoked or modified by the customer; (b) that the customer may revoke the consent at any time; and (c) the procedure for the customer to revoke consent; and

(v) the form, statement, or writing clearly and conspicuously informs the customer that (a) the financial institution will maintain the document or a true and correct copy; (b) the customer is entitled to a copy of the document upon request; and (c) the customer may want to make a copy of the document for the customer's records.

(B) A bank shall not discriminate against or deny an otherwise qualified customer a financial product or financial service because the customer has not provided the consent under this subsection (c) to authorize the bank to disclose or share financial records or financial information obtained from financial records relating to that customer with any non-affiliated third person. Nothing in this subsection (c) shall prohibit a bank from denying a customer a financial product or service if (i) the financial institution could not provide the product or service to a customer without the consent to disclose financial records or financial information obtained from financial records relating to that customer required by this subsection (c) and (ii) the customer has failed to provide consent.

(C) A bank shall not be liable for failing to offer products and services to a customer solely because (i) that customer has failed to provide consent under this subsection (c) and the bank could not offer the product or service without consent to disclose the customer's financial records or financial information obtained from financial records relating to that customer required by this subsection (c) and (ii) the customer has failed to provide consent. Nothing in this Section is intended to prohibit a financial institution from offering incentives or discounts to elicit a specific response to the notice.

(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; or

(3) the bank is attempting to collect an obligation owed to the bank and the bank complies with the provisions of Section 2I of the Consumer Fraud and Deceptive Business Practices Act.

(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 mails 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 his personal representative, if known, at his last known address by first class mail, postage prepaid, 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.

(e) Any officer or employee of a bank who knowingly and willfully furnishes financial records in violation of this Section is guilty of a business offense and, upon conviction, shall be fined not more than $1,000.

(f) Any person who knowingly and willfully induces or attempts to induce any officer or employee of a bank to disclose financial records in violation of this Section is guilty of a business offense and, upon conviction, shall be fined not more than $1,000.

(g) A bank shall be reimbursed for costs that are reasonably necessary and that have been directly incurred in searching for, reproducing, or transporting books, papers, records, or other data of a customer required or requested to be produced pursuant to a lawful subpoena, summons, warrant, citation to discover assets, or court order. The Commissioner shall determine the rates and conditions under which payment may be made.

(Source: P.A. 94-495, eff. 8-8-05; 94-851, eff. 6-13-06; 95-661, eff. 1-1-08.)