# Title 6 — Banks and Banking

## Chapter 6-08.1 — Disclosure of Customer Information

### § 6-08.1-01. Definitions.

As used in this chapter:
1. "Customer" means any person that is a resident of or is domiciled in this state and
which has transacted or is transacting business with or has used or is using the
services of a financial institution, or for which a financial institution has acted as a
fiduciary with respect to trust property.
2. "Customer information" means either of the following:
a. Any original or any copy of any records held by a financial institution pertaining to
a customer's relationship with the financial institution.
b. Any information derived from a record described in this subsection.
3. "Financial institution" means any organization authorized to do business under state or
federal laws relating to financial institutions, including, without limitation, a bank,
including the Bank of North Dakota, a savings bank, a trust company, a savings and
loan association, or a credit union.
4. "Financial institution regulatory agency" means any of the following:
a. The federal deposit insurance corporation.
b. The federal savings and loan insurance corporation.
c. The national credit union administration.
d. The federal reserve board.
e. The United States comptroller of the currency.
f. The department of financial institutions.
g. The federal home loan bank board.
5. "Governmental agency" means any agency or department of this state, or any
authorized officer, employee, or agent of an agency or department of this state.
6. "Law enforcement agency" means any agency or department of this state or of any
political subdivision of this state authorized by law to enforce the law and to conduct or
engage in investigations or prosecutions for violations of law.
### § 6-08.1-02. Exemptions.

This chapter does not apply to any of the following:
1. The disclosure of necessary customer information in the preparation, examination,
handling, or maintenance of any customer information by any officer, employee, or
agent of a financial institution having custody of such information or in the examination
of such necessary information by an accountant engaged by the financial institution to
perform an audit.
2. The disclosure of necessary customer information in the examination of any customer
information by or the furnishing of customer information to any officer, employee, or
agent of a financial institution regulatory agency solely for use in the exercise of that
person's duties.
3. The publication of data derived from customer information if the data cannot be
identified to any particular customer or account.
4. Any acts required of the financial institution by the Internal Revenue Code.
5. Disclosures permitted under the Uniform Commercial Code concerning the dishonor of
any negotiable instrument.
6. The exchange in the regular course of business of necessary customer credit
information between a financial institution and other financial institutions or commercial
entities, directly or through a customer reporting agency.
7. The release by the industrial commission, in its capacity as the managing body of the
Bank of North Dakota, of the following:
a. The name of any person who has obtained approval for direct financing or
security, including a loan guarantee or a letter of credit, through the Bank of North
Dakota primarily for purposes other than personal, family, or household purposes.
b. The amount of any financing or security referenced in subdivision a.

c. The amount of any net writeoff or loan forgiveness that the industrial commission
determines is uncollectible.
d. The program under which any financing or security referenced in subdivision a
was made.
8. The disclosure of customer information in the examination, handling, or maintenance
of any customer information by any governmental agency or law enforcement agency
for purposes of verifying information necessary in the licensing process, provided prior
consent is obtained from the licensee and customer.
9. Disclosure of customer information to a law enforcement agency or governmental
agency pursuant to a search warrant or subpoena duces tecum issued in accordance
with applicable statutes or the North Dakota Rules of Criminal Procedure.
10. Disclosure by a financial institution to the agriculture commissioner that it has given a
customer notice of the availability of the North Dakota mediation service.
11. The disclosure by a financial institution to any financial institution or other entity that
controls, is controlled by, or is under common control with the financial institution if the
financial institution or other entity receiving the information complies with section
6-08.1-03.
12. A disclosure of customer information under section 502(e) of the federal Financial
Services Modernization Act of 1999 [Pub. L. 106-102; 113 Stat. 1436; 15 U.S.C.
6802(e)]. A disclosure under this subsection must comply with the rules adopted under
section 6-08.1-10.
13. A disclosure made to the disciplinary board of the North Dakota supreme court or
another state's authority with responsibility for enforcing rules of professional conduct
for lawyers regarding dishonor of an instrument issued against any trust account
maintained by an attorney or law firm, as these terms are defined in section 6-08-16.2.
### § 6-08.1-03. Duty of confidentiality.

A financial institution may not disclose customer information to a person, governmental
agency, or law enforcement agency unless the disclosure is made in accordance with any of the
following:
1. Pursuant to consent granted by the customer in accordance with this chapter.
2. To a person other than a governmental agency or law enforcement agency pursuant to
valid legal process.
3. To a governmental agency or law enforcement agency pursuant to valid legal process
in accordance with this chapter.
4. For the purpose of reporting a suspected violation of the law in accordance with this
chapter.
5. For the purpose of notifying the agriculture commissioner a financial institution has
notified a customer of the availability of the North Dakota mediation service.
6. As part of the disclosure made of deposits of public corporations with financial
institutions in the security pledge schedule verified by the custodian of securities
pursuant to section 21-04-09.
7. For purposes of reporting suspected exploitation of an eligible adult as defined by
section 12.1-31-07. This subsection may not be construed to impose a duty on a
financial institution to investigate an alleged or suspected exploitation of an eligible
adult or to make a report to a governmental agency or law enforcement agency.
8. For purposes of reporting suspected financial exploitation of an eligible adult under
chapter 6-08.5 to a law enforcement agency, the protection and advocacy project
under chapter 25-01.3, or the department of health and human services. This
subsection may not be construed to impose a duty on a financial institution to
investigate a suspected financial exploitation of an eligible adult or to make a report to
the department of health and human services, law enforcement agency, or the
protection and advocacy project.
### § 6-08.1-03.1. Agricultural and commercial accounts.

Disapproved by R.M. June 11, 2002, S.L. 2003, ch. 575.

### § 6-08.1-04. Consent.

1. No consent or waiver shall be required as a condition of doing business with any
financial institution, and any consent or waiver obtained from a customer as a
condition of doing business with a financial institution shall not be deemed a consent
of the customer for the purpose of this chapter.
2. A valid consent must be in writing and signed by the customer. In consenting to
disclosure of customer information, a customer may specify any of the following:
a. The time during which such consent will operate.
b. The customer information to be disclosed.
c. The persons, governmental agencies, or law enforcement agencies to which
disclosure may be made.
### § 6-08.1-05. Government access.

1. A governmental agency or law enforcement agency may obtain customer information
from a financial institution pursuant to either of the following:
a. The consent of the customer, in accordance with this chapter.
b. Valid legal process, in accordance with this section.
2. A governmental agency or law enforcement agency may obtain customer information
from a financial institution pursuant to a judicial or administrative subpoena duces
tecum served on the financial institution, if there is reason to believe that the customer
information sought is relevant to a proper law enforcement objective or is otherwise
authorized by law.
3. A governmental agency or law enforcement agency may obtain customer information
from a financial institution pursuant to a search warrant if it obtains the search warrant
pursuant to the rules of criminal procedure of this state. Examination of the customer
information may occur as soon as it is reasonably practicable after the warrant is
served on the financial institution.
### § 6-08.1-06. Suspicion of unlawful conduct.

1. Nothing in this chapter precludes a financial institution from initiating contact with, and
thereafter communicating with and disclosing customer information to, a law
enforcement agency when the financial institution reasonably believes that the
customer about whom such information pertains:
a. Is engaged in unlawful activity; or
b. Is defrauding the financial institution.
2. Conviction of the customer or admission by the customer shall be conclusive of the
reasonableness of the disclosure for purposes of this section.
3. The burden is on the financial institution to show that at the time the disclosure was
made, the disclosure was reasonable for the purposes of this section.
### § 6-08.1-07. Cost reimbursement.

Any governmental agency, law enforcement agency, or person requiring or requesting
access to customer information shall pay to the financial institution that assembles or provides
the customer information a fee for reimbursement of reasonably necessary costs which have
been directly incurred by the financial institution. A financial institution must deliver the customer
information sought as soon as reasonably possible notwithstanding any dispute concerning the
amount of reimbursement due under this section. A separate action may be maintained by the
financial institution against the governmental agency, law enforcement agency, or person
requesting access for recovery of reasonable reimbursement. The financial institution may not
charge the state auditor for customer information requested when performing an audit; however,
the financial institution may charge the entity being audited by the state auditor for the
information requested.

### § 6-08.1-08. Liability.

1. A financial institution, governmental agency, law enforcement agency, or any other
person is liable to the customer for intentional violations of this chapter in an amount
equal to the greater of the following:
a. One thousand dollars.
b. Actual damages caused by the disclosure of the customer information.
2. Any financial institution, governmental agency, law enforcement agency, or other
person that takes any action pursuant to this chapter, relying in good faith on any
provision of this chapter, may not be held liable to any person for its actions.
### § 6-08.1-09. Joint marketing agreements - Consent.

A financial institution must have a customer's consent before the financial institution may
disclose the customer's information to a nonaffiliated third party under a joint marketing
agreement as provided under section 502(b)(2) of the federal Financial Services Modernization
Act of 1999 [Pub. L. 106-102; 113 Stat. 1437; 15 U.S.C. 6802(b)(2)].
### § 6-08.1-10. Rules.

The state banking board and the state credit union board shall adopt rules to implement
subsection 12 of section 6-08.1-02. The rules must provide at least as much customer
protection as would be provided in the case of disclosure of information under circumstances in
which there has been an opt-out election under title V of the federal Financial Services
Modernization Act of 1999 [Pub. L. 106-102; 113 Stat. 1436].
