MEMORANDUM
OF
UNDERSTANDING
BETWEEN
THE
NEW
YORK
STATE
BANKING
DEPARTMENT
AND
THE
OFFICE
OF
THE
COMPTROLLER
OF
THE
CURRENCY
November
30,
2006
MEMORANDUM OF UNDERSTANDING
BETWEEN
THE NEW YORK STATE BANKING DEPARTMENT
AND
THE OFFICE OF THE COMPTROLLER OF THE CURRENCY
The New York State Banking Department (“Banking Department”) and the Office
of the Comptroller of the Currency (OCC) (each, the “Agency;” collectively, the
“Agencies”) are entering into this Memorandum of Understanding (“MOU”) to enhance
their communication and exchanges of information to achieve prompt and effective
resolution and redress of consumer complaints relating to the financial institutions and
their financial affiliates that the Agencies respectively supervise, examine or regulate
(“Regulated Institutions”).
The Agencies recognize that issues may exist concerning the scope of the
respective jurisdiction of each of the Agencies to supervise, examine or regulate certain
Regulated Institutions. Nothing in this MOU is intended to or shall be construed to
affect, modify, or imply any conclusion regarding the jurisdiction or authority of either of
the Agencies or affect the rights, powers or obligations of the Agencies under existing
law concerning the scope of the respective jurisdiction of each of the Agencies to
supervise, examine, or regulate or bring administrative or judicial enforcement
proceedings against the Regulated Institutions covered by this MOU. Nothing in this
MOU shall be construed to prevent either Agency from taking any supervisory,
examination, regulatory or enforcement action that the Agency may deem necessary or
appropriate to carry out its responsibilities as permitted by applicable law.
Pursuant to the foregoing, this MOU is made and entered into as of November 30,
2006, between the OCC and the Banking Department.
1. Complaint Referrals and Information Sharing
To the extent permitted by applicable law, including but not limited to the Right
to Financial Privacy Act
1
and the Privacy Act,
2
the OCC agrees to refer to the Banking
Department consumer complaints and allegations of violations of consumer protection
laws concerning Regulated Institutions it concludes are subject to the jurisdiction of the
Banking Department, and the Banking Department agrees to refer to the OCC consumer
complaints and allegations of violations of consumer protection laws concerning
Regulated Institutions it concludes are subject to the jurisdiction of the OCC. The
Agencies agree to explore means to enhance processes and procedures for such sharing
and to facilitate the sharing of information concerning the status and resolution of
complaints and actions taken based on complaints or evidence of alleged violations of
consumer protection laws referred by an Agency to the other Agency.
In order to accomplish substantive information sharing, the OCC agrees to submit
to the Banking Department a written quarterly report of referrals received from the
Banking Department that either are not in closed status or that have been closed since the
last written report setting forth the following based upon the OCC’s Consumer Assistance
Group (CAG) database:
• the name of the consumer,
• the identifying number assigned to the complaint by the CAG,
1
12 U.S.C. §§ 3401 – 3422.
2
5 U.S.C. § 552a.
2
• bank name,
• date opened,
• date closed,
• category of case (such as loan, credit card, or deposit account) and specific laws
or regulations involved,
• case status, and
• resolution (including any compensation amount).
The current status of the referral will contain the following types of information,
using CAG data elements, as appropriate:
• Complaint is under review by the OCC;
• Complaint is pending, including pending response from the bank or additional
information from the consumer;
• Complaint has been referred to another federal or state agency;
• Complaint has been withdrawn; and
• Complaint has been closed, including information on the date closed and final
disposition of the complaint.
The OCC will provide the Banking Department with information explaining the
terminology used in the data elements provided under this agreement.
Likewise, if requested by the OCC, the Banking Department agrees to submit to
the OCC a written quarterly report of referrals received from the OCC that contains
similar data as that described above to the extent that such a report can be generated with
reasonable effort based on databases maintained by or on behalf of the Banking
Department.
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2. Confidentiality
(a) For purposes of this MOU, any of the following information obtained by
a Requesting Agency shall be treated as Confidential Information:
(i) the name, address, or other personally identifiable information
relating to any consumer; and
(ii) any supervisory determinations by the Responding Agency, including
the findings, resolution, and compensation amount relating to any
complaint.
(b) The Requesting Agency agrees to use any Confidential Information it
receives pursuant to this Memorandum only for purposes directly related to the exercise
of its regulatory authority. The Requesting Agency may not make any additional use, or
disclosure, of Confidential Information without the prior approval of the Responding
Agency which shall not be unreasonably denied.
(c) All Confidential Information provided pursuant to this Memorandum
belongs to, and shall remain the property of, the Responding Agency. The Requesting
Agency shall also take all actions reasonably necessary to preserve and protect any
privilege or claim of confidentiality relating to Confidential Information, including:
(i) restricting access to Confidential Information obtained pursuant to this
Memorandum to only those of its officers, employees, or agents (including
outside counsel, accountants, and consultants) who have a bona fide need
for such information in carrying out the supervisory responsibilities of the
Requesting Agency;
(ii) informing those of its officers, employees, or agents who are provided
access to such Confidential Information of the Requesting Agency’s
responsibilities under this Memorandum; and
4
(iii) establishing appropriate physical safeguards for maintaining such
Confidential Information.
(d) If the Requesting Agency receives a request from a third party for
Responding Agency Confidential Information, or is served with a subpoena, order, or
other process requiring production of such information, the Requesting Agency shall:
(i) immediately notify the Responding Agency and provide to it copies of
such request, subpoena, order, or other process as well as attachments
thereto;
(ii) provide the Responding Agency the opportunity to take whatever
action it deems appropriate to preserve, protect, and maintain the
confidentiality of such information or any related privileges;
(iii) cooperate fully with the Responding Agency to preserve, protect, and
maintain the confidentiality of such information or any related privileges;
(iv) except with respect to requests under the New York State Freedom of
Information Law (codified as the New York Public Officers Law, Sections
84-90 (Consolidated Laws of New York (McKinney's 2001 and 2006)),
notify the party seeking the information that it was obtained from and is
considered the property of the Responding Agency and that requests for
such information must be made directly to the Responding Agency in
accordance with applicable federal or state law;
(v) resist, to the extent practicable, production of such information,
pending receipt of written consent from the Responding Agency to the
production of that information; and
5
(vi) consent to any application by the Responding Agency to intervene in
any action to preserve, protect, and maintain the confidentiality of such
information or any related privileges.
(e) Nothing in this Memorandum shall prevent the Requesting Agency from
complying with a legally valid and enforceable order by a court, adjudicatory body, or
legislative body of competent jurisdiction compelling production of Confidential
Information, providing that the Requesting Agency:
(i) reasonably determines that efforts to quash, appeal, or resist
compliance with the order would be unsuccessful;
(ii) attempts, to the extent practicable, to secure a protective order to
preserve, protect, and maintain the confidentiality of such information or
any related privileges; and
(iii) immediately notifies the Responding Agency of its intent to comply
with the order and of any actions taken in compliance with the order.
In complying with the request, the Requesting Agency will use its best
efforts to obtain from the requestor a commitment to maintain the confidentiality of the
information and advise the legislative body that the information to be produced belongs
to the other Agency. The Requesting Agency agrees to advise the Responding Agency as
promptly as is reasonably possible of such a request prior to complying with any such
request.
3. Miscellaneous
(a) Authority. Each party to this MOU has requisite legal authority to enter into
this MOU. In the event of any material change to its authority, a party will provide
written notification to the other party within ten (10) calendar days of any such change.
6
will be updated as appropriate.
OFFICE OF THE COMPTROLLER
THE CURRENCY
OF THE
NEW
YORK STATE BANKING
DEPARTMENT
By:
hnC.
Dugan
omptroller
of
the urrency Superintendent
of
Banks
(b) Termination. Either party may terminate this MOU with respect to
prospective sharing
of
information by providing thirty (30) calendar days advance written
notice to the other party.
In
the event
of
termination, information obtained by a
Requesting Agency under this MOU,
if
not returned, will remain the property
of
the
Responding Agency and the Requesting Agency will continue to observe all terms and
conditions
of
this
MOU
that relate to such information.
(c) Agency Contacts. As soon as practicable after execution
of
this MOU, each
Agency will advise the other
of
the name, title, and contact information, including
addresses and telephone and fax numbers, for the appropriate official(s) to contact for
purposes
of
notices and exchanges
of
information hereunder. This contact information
Diana
L.
Taylor
7
