NEBRASKA PRIVACY LAWS

I. INTRODUCTION

Although Nebraska does not recognize a common law right to privacy, there are a number of pertinent Nebraska laws related to various aspects of the right to privacy. This article is a summary of selected statutes that are of use to financial institutions as employers and as providers of banking services.

II. INVASION OF PRIVACY LAW

The following types of invasion of privacy are actionable in Nebraska:

Unwarranted appropriation of one’s name, picture, portrait or personality;
Placing of a person before the public in a false light; and
Unlawful intrusion into one’s solitude or seclusion.

In particular, under Neb.Rev.Stat. § 20-203, it states that

any person, firm or corporation that trespasses or intrudes upon any natural person in his or her place of solitude or seclusion, if the intrusion would be highly offensive to a reasonable person shall be liable for invasion of privacy.

Under this law, the central issue may be whether an expectation of privacy exists.

III. EMPLOYEE PRIVACY

Despite the provisions of Neb.Rev.Stat. § 20-203 cited above, employers should be aware that Neb.Rev.Stat. § 86-290 provides that on its business premises, it is not unlawful for an employer to:

intercept, disclose, or use (wire) communication(s) in the normal course of his, her or its employment while engage in any activity which is a necessary incident to the rendition of his, her or its services or to the protection of the rights or property of the carrier or provider of such communications services.

Reading these two statutes in tandem, employers engaging in random monitoring of such communications should first give reasonable notice of the policy to employees so that there is no privacy expectations on the part of employees. This is because a person may attempt to claim a privacy right under invasion of privacy laws.

IV. DISCLOSURE OF CONFIDENTIAL INFORMATION

A. General Law

Neb.Rev.Stat. § 8-1401 provides the general rule on disclosure of confidential information by financial institutions and other persons. The general rule is that a financial institution is not required to disclose any records or information, financial or otherwise, that it deems confidential.

B. Exceptions to the General Rule

Neb.Rev.Stat. § 8-1401 provides the following exceptions to the general rule described above:

Disclosures relating to a lawyer’s trust account are to be made when such disclosures are required to be made to the Counsel for Discipline of the Nebraska Supreme Court pursuant to a rule adopted by the Nebraska Supreme Court (e.g., Rule 4 – Nebraska Supreme Court Trust Accounts and Blanket Bond Rules – A financial institution approved as a depository for lawyers’ trust accounts must agree to provide to the Counsel for Discipline notices of all insufficient funds checks presented on lawyers trust accounts, whether or not such checks are ultimately paid).
Disclosures are required when the financial institution is presented with a court order by a court of competent jurisdiction. Such court order must comply with all statutory requirements. The court order must set forth the exact nature and limits of such required disclosure and a showing that all persons or organizations to be affected by such order have had reasonable notice and an opportunity to be heard upon the merits of such order.
Disclosures governed by the rules for discovery as contained in Neb.Rev.Stat. § 25-1273.01 are required to be made.
The disclosure is made pursuant to § 8-1404. (Date of death value of assets and names of known designated beneficiaries).
Disclosures must be made pursuant to request by a law enforcement agency regarding a crime, a fraud or any other unlawful activity in which the person to whom the request for disclosure is made, is, or may be a victim of such crime, fraud or unlawful activity (e.g,. check kiting; embezzlement by a financial institution employee).
Disclosures are required to be made pursuant to requests made by a governmental agency which is the supervisory regulatory agency of the person to whom the request for disclosure is made if the disclosure relates to examinations, audits, investigations or inquiries of such persons (e.g., Department of Banking and Finance request for information in the course of conducting a regular examination of a financial institution).
Requests for disclosure made pursuant to a subpoena issued under the laws of this state by a governmental agency exercising investigatory or adjudicative functions with respect to a matter within the agency’s jurisdiction (e.g., Department of Banking, through its Securities Division, in the course of investigating an investment fraud, subpoenas bank records of the alleged perpetrator. Although the Department is the supervisory regulatory agency of the financial institution, it must issue a subpoena to obtain the records as they would not be entitled to the records under the general supervisory regulatory agency exception described in paragraph II. A. (5), above, because the bank is not the subject of the investment fraud investigation).
Production of records must be made pursuant to a written demand of the Nebraska State Tax Commissioner pursuant to Neb.Rev.Stat. § 77-375 (e.g., this statutory provision requires production of records as may be necessary for the performance of the Tax Commissioner’s responsibilities under applicable state law).
Disclosures must be made pursuant to the presentment to a financial institution of a subpoena, summons or warrant issued by a court of competent jurisdiction.
Disclosures are required to be made pursuant to a statute, which by its terms or rules and regulations adopted and promulgated thereunder, requires the disclosure, other than by subpoena, summons, warrant or court order (e.g., disclosure of records pursuant to garnishment interrogatories).
Disclosures made after written permission is presented to the financial institution by the person for whom the records or information is being sought authorizing the release of the requested records or information (e.g., a person applying for welfare assistance authorizes a financial institution to give the Department of Health and Human Services information regarding checking and savings accounts).
The disclosure is made pursuant to § 30-2409.01. (Access to Safe Deposit Box Contents).
Disclosure of records or information to a certified public accountant while engaged to perform an independent audit.
The disclosure of records or information or the making of reports pursuant to a statute which, by its terms or rules and regulations adopted and promulgated thereunder, permits the disclosure or reports.
Disclosure, in the regular course of business, of records or information for the purpose of conducting due diligence pursuant to a proposed purchase or sale of a financial institution or the sale of the assets or liabilities of a financial institution.

Information provided to the Department of Banking in its function as supervisory regulatory agency of a financial institution is granted further protection by Neb.Rev.Stat. § 8-112(2) which provides that Department of Banking examination reports, investigation reports and other documents and information relating to such reports are confidential records of the Department and may only be released or disclosed if: (1) necessary in the performance of the official duty of the department or pursuant to a properly issued subpoena; and (2) upon entry of a protective order from a court of competent jurisdiction to protect and keep confidential the names of borrowers or depositors or to protect the public interest. If such reports, documents and information are subpoenaed from the Department of Banking, the party issuing the subpoena must give notice of the subpoena’s issuance at least three business days in advance of the entry of a protective order to the financial institution that is the subject of such reports, documents and information, unless: (1) the financial institution is already a party to the underlying proceeding; or (2) the notice is otherwise prohibited by law or court order.

A financial institution making a disclosure of records or information pursuant to the above-stated provisions will not be held civilly or criminally liable for such disclosure in the absence of malice, bad faith, intent to deceive or gross negligence.

C. Disclosure of Confidential Information/Date of Death Value of Assets and Names of Known Designated Beneficiaries

Neb.Rev.Stat. § 8-1401(c) provides an exception to the restrictions on disclosure of confidential customer information by a financial institution to allow for disclosure of the value of the indebtedness or property held by the financial institution and the names of the known or designated beneficiaries of the property to a person presenting an affidavit in compliance with the statutory requirements.

The legislation allows attorneys, agents and other designated parties to obtain this information (value of indebtedness or property and names of known or designated beneficiaries) in lieu of having to commence estate proceedings or obtain the appointment of a special administrator in cases in which such action would not otherwise be required.

The provisions of Neb.Rev.Stat. § 8-1404 authorize the holder of a bank account or certificate of deposit to provide the “date of death value of the indebtedness or property in its possession and the names of the known or designated beneficiaries of the property to “a person who presents an affidavit containing the following information:

(1) the name, address, social security number if available, and date of death of the decedent;

(2) the name and address of the affiant and that the affiant is:

(a) an heir at law of the decedent;

(b) a devisee of the decedent or a person nominated as a personal representative in a will of the decedent; or

(3) that the disclosure of the value on the date of death is necessary to determine whether the decedent’s estate can be administered under the summary proceedings set forth in § 30-24,125 (i.e., using the small estate affidavit), to assist in the determination of inheritance tax in an estate that is not subject to probate, or to assist a conservator or guardian in the preparation of a final accounting subsequent to the death of the decedent; and

(4) that the affiant is answerable and accountable for the information received to the decedent’s personal representative, if any, or to any other person having a superior right to the property or indebtedness.

If a financial institution is presented with an affidavit in compliance with the statutory requirements, the institution must provide the information within five business days of presentment. As long as the financial institution relies in good faith upon the affidavit, it is immune from liability under state law for having disclosed the requested information. Because the disclosure of this information is required by a state statute, this disclosure falls under one of the exceptions to the notice and opt-out provisions of Regulation P, which in turn protects the financial institution from violations of the federal regulatory requirements and prohibitions of Regulation P.

There is no statutorily prescribed affidavit, and therefore no standard format of what may be presented to the financial institution, however, a sample affidavit is provided at attached Exhibit 1.

D. Disclosure of Confidential Information/Access to Safe Deposit Box

Neb.Rev.Stat. § 30-2409.01 provides, in part, for an exception to the restrictions to the disclosure of confidential customer information to allow for access to a decedent’s safe deposit box pursuant to an affidavit submitted to a financial institution by an interested party for the purpose of determining if the safe deposit box contains burial instructions, a deed to a burial plot, or an original will of the decedent.

If a decedent at the time of his or her death was a sole or last surviving joint lessee of a safe deposit box, upon presentation of an affidavit in compliance with the new statutory requirements and prior to the financial institution having received notice that a personal representative or a special administrator has been appointed for the decedent’s estate, an interested party is allowed access to the decedent’s safe deposit box to determine if the safe deposit box contains burial instructions, a deed to a burial plot, or an original will of the decedent.

There are a number of affirmative obligations that apply to financial institutions under this situation, as follows:

1. PHYSICAL PRESENCE-A representative of the custodian (authorized officer or employee of the financial institution) must be present during entry by the affiant to the safe deposit box.

2. MISSING KEY-If the affiant seeking access to a safe deposit box does not possess a key to the box, the custodian may open the safe deposit box by any means necessary at the affiant’s request and expense or the custodian may require the person to obtain a court order for the custodian to open the safe deposit box at the affiant’s expense.

3. OTHER CONTENTS-The custodian must retain, in a secure location, at the affiant’s expense, the contents of the safe deposit box other than a purported will, deed to a burial plot, and burial instructions.

4. DELIVERY OF WILL TO COURT-If an instrument purporting to be will of the decedent is found in a safe deposit box, the representative of the custodian must take the following steps: (1) remove the purported will from the safe deposit box; (2) mail the purported will be registered or certified mail or deliver the purposed will in person to the Clerk of the County Court of the county of which the decedent was a resident. If the custodian is unable to determine the county of residence of the decedents, the custodian must mail the purported will by registered or certified mail or deliver the purported will in person to the office of the Clerk of the County Court of the county in which the safe deposit box is located.

5. BURIAL PLOT DEED AND BURIAL INSTRUCTIONS-If the safe deposit box contains a deed to a burial plot or burial instructions that are not part of a purported will, the person or persons authorized to have access to the safe deposit box may remove these instruments or request that the representative of the custodian copy the deed to the burial plot or burial instructions at the expense of the requesting person.

6. COPYING WILL-The custodian at the request of the person entering the safe deposit box must copy each purported will of the decedent and deliver the copy of each purported will to such person, or if directed by the person, to the person's agent or attorney. In copying any purported will the custodian shall not remove any staples or other fastening devices or disassemble the purported will in any way.

7. ACCESS BY PERSONAL REPRESENTATIVE OR SPECIAL ADMINISTRATOR-The Affidavit procedure does not limit the right of a personal representative or a special administrator for the decent, or a successor of the decedent pursuant to § 30-24,125 (i.e. Small Estate Affidavit) to have access to the safe deposit box as otherwise provided by law.

8. ACCESS BY CO-LESSEE-Unless limited by the safe deposit box lease, a surviving co-lessee of the safe deposit box may continue to enter the safe deposit box notwithstanding the death of the decedent.

9. IMMUNITY-The custodian shall not be liable to a person for an action taken pursuant to the statute or for a failure to act in accordance with the statute unless the action or failure to act is shown to have resulted from the custodian’s bad faith, gross negligence, or intentional misconduct.

There is no statutorily prescribed affidavit, and therefore no standard format of what may be presented to the financial institution however a sample affidavit is provided at Exhibit 2.

V. REIMBURSEMENT OF COSTS

Neb.Rev.Stat. § 8-1402 provides for reimbursement procedures. The requesting party must pay the costs incurred by the bank in providing the records or information as required by Neb.Rev.Stat. § 8-1402unless: (a) the request for disclosure is made pursuant to paragraph IV. B. (1), above, and a Nebraska Supreme Court rule provides for the method of payment; (b) the request for disclosure is made pursuant to paragraph.IV. B. (5) or (6), above; or (d) the person making the disclosure waives any or all of the costs.

Reimbursement is based upon the “actual cost” of providing records or information to the requesting party. For purposes of Neb.Rev.Stat. § 8-1402 “actual cost” means (a) search and processing costs, including the total amount of personnel direct time incurred in locating and retrieving, reproducing, packaging, and preparing records or information for shipment or delivery. Search and processing costs may include the actual cost of extracting information stored by computer in the format in which it is normally produced, based on computer time and necessary supplies; (b) reproduction costs incurred in making copies of records or information requested. The rate for reproduction costs for making copies of requested records or information shall be the usual rate charged by the person making the disclosure to its customers for reproducing copies, including copies produced by reader-printer reproduction processes. Photographs, films, and other materials shall be reimbursed at actual cost; and (c) transportation costs, including transport of personnel to locate and retrieve the records or information requested and including all other reasonably necessary costs to convey the records or information. No records or information need be disclosed until the financial institution is assured that reimbursement costs will be paid, unless the request for disclosure is made pursuant to paragraphs IV. B. (5), (6), (7), or (8), above.

VI. CASELAW

The bank has a duty not to invade the privacy of its customers. Although the privacy interests of persons may differ from state to state, the duty generally means a bank is to not publicize the private affairs of a customer without a legitimate public concern. Schoneweis v. Dando, 231 Neb. 180 (1989).

EXHIBIT 1

Affidavit for Date of Death Value of Property or Indebtedness and Names of Known or Designated Beneficiaries

STATE OF NEBRASKA                       )

                                                            ) s.s.

COUNTY OF ____________                 )

The undersigned affiant, upon being first duly sworn, does hereby depose and state:

1. This affidavit is made under Neb. Rev. §8-1404. Under that statute, a person (a) indebted to the decedent or (b) having possession of (i) personal property, (ii) an instrument evidencing a debt, (iii) an obligation, (iv) a chose in action, (v) a life insurance policy, (vi) a bank account, (vii) a certificate of deposit, or (viii) intangible property, including annuities, fixed income investments, mutual funds, cash, money market accounts, or stocks, belonging to the decedent, shall furnish the value of the indebtedness or property on the date of death and the names of the known or designated beneficiaries of such property to a person who presents an affidavit containing the information required by the statute.

2. That [Name of Decedent] of [Address of Decedent] died on [Date of Death of Decedent]. The social security number of the Decedent is [Social Security Number of Decedent, if available] and a copy of the death certificate of [Name of Decedent] is attached to this Affidavit.

3. The affiant is one of the following (Mark which one the affiant is):

Item

Description

Mark here

A.

I am an heir-at-law of the decedent (someone who receives if there is no will) and my relationship with the decedent is ___________________________

B.

I am a devisee of the decedent (a person named as a beneficiary in the will) (A photocopy of the will is attached to this Affidavit.)

C.

I am a nominated as a personal representative in a will of the decedent

(A photocopy of the will is attached to this Affidavit.)

D.

An agent or attorney authorized in writing by a person named in A, B or C above (A photocopy of the written authorization is attached to this Affidavit)

4. That the disclosure of the value on the date of death is necessary to (Mark which one is applicable):

Item

Description

Mark here

A.

Determine whether the decedent's estate can be administered under the summary procedures set forth in section 30-24,125.

B.

Assist in the determination of the inheritance tax in an estate that is not subject to probate.

C.

Assist a conservator or guardian in the preparation of the final accounting subsequent to the death of the decedent.

5. That the affiant is answerable and accountable for the information received to the decedent's personal representative, if any, or to any other person having a superior right to the property or indebtedness.

6. I swear or affirm that all statements in this Affidavit are true and material and further acknowledge that any false statement may subject me to penalties relating to perjury under section 28-915.

7. I have no knowledge of an application or petition for the appointment of a personal representative or special administrator pending or granted in any jurisdiction.

_____________________20___.

________________________________________

[Name of Affiant]

________________________________________

[Address of Affiant]

Subscribed and sworn or affirmed before me by [Name of Affiant] on Notary Public.

__________________________________

                                                                                    Notary Public



EXHIBIT 2

Affidavit for Access to Safe Deposit Box

STATE OF NEBRASKA           )

                                                )s.s.

COUNTY OF __________         )

This affidavit is made under Neb. Rev. §30-2409.01. I am [Name of Affiant], Under that statute the custodian of the safe deposit box is to provide limited access to the safe deposit box.

In part that statute reads: if a decedent at the time of his or her death was a sole or last surviving joint lessee of a safe deposit box, the custodian shall, prior to notice that a personal representative or special administrator has been appointed for such decedent's estate, allow access to the safe deposit box to determine whether the safe deposit box contains an instrument that appears to be an original will of the decedent, a deed to a burial plot, or burial instructions."

The undersigned affidavit, upon being first duly sworn, does hereby depose and state:

1.      That the sole or last surviving lessor of a safe deposit box has died and the date of his or her death is shown below, and a copy of the death certificate is attached to this Affidavit.

Name of Decedent

Address of Decedent

Social Security Number of Decedent

Date of Death of Decedent

Box Numbers(s) if available

2.         The affiant is one of the following: (Mark which one the affiant is.)

Item

Description

Mark here

A.

I am an heir-at-law of the decedent (someone who receives if there is no will) and my relationship with the decedent is

B.

I am reasonably thought to be a Devisee of the decedent (as person named as a beneficiary in the will) (A photocopy of the will is attached to this Affidavit.)

C.

I am a nominated as a personal representative in a will of the decedent (A photocopy of the will is attached to this Affidavit.)

D.

I am a person who under the terms of the safe deposit box lease or a power of attorney at the time of the decedent's death was legally permitted to enter to the safe deposit box.

E.

I am a person who under the terms of a power of attorney at the time of the decedent's death was legally permitted to enter to the safe deposit box.

F.

An agent or attorney authorized in writing by a person named in A above

G.

An agent or attorney authorized in writing by a person named in B above

H.

An agent or attorney authorized in writing by a person named in C above

3. I swear or affirm that all statements in this affidavit are true and material and further acknowledge that any false statement may subject me to penalties relating to perjury under section 28-915.

4. I have no knew ledge of an application or petition for the appointment of a personal representative or special administrator pending or granted in any jurisdiction.

_____________________20___.

_____________________________________

[Name of Affiant]

_____________________________________

[Address of Affiant]

Subscribed and sworn or affirmed before me by [Name of Affiant] on Notary Public.

__________________________________

                                                                                    Notary Public

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