Protect Yourself When Law Enforcement Officers Seek Confidential Information or Access

Suppose people showed up at your management office with official-looking badges and asked to see a copy of a resident’s file. Chances are you may not have encountered a situation like this before. Many well-meaning managers would probably hand over the file, especially if the agents said they were investigating some serious crime involving the resident.

But that’s a risky move. The people may be posing as law enforcement officers to get confidential information illegally. And even if they are officers, a resident can still sue you if the officers didn’t have a court order requiring you to release the documents. To help you avoid liability for giving out confidential information about residents, we’ve developed a five-step procedure for you to follow in any situation where people claiming to be law enforcement officers come to your site and ask for information, documents, or access.

TAKE FIVE STEPS

Here are five steps you should take to help protect yourself from liability when people claiming to be law enforcement officers come to your community and demand information or documents.

Step #1: Have Staff Members Direct All Law Enforcement Inquiries to Management

Designate in your office the person or persons who will be responsible for handling law enforcement requests. The fewer staff members with discretion to decide whether to disclose information, the less likely that a mistake will happen.

In most circumstances, the designated person should be the manager, and, if available, the site’s attorney. Don’t allow leasing agents, office assistants, maintenance personnel, and so on, to respond to inquiries about residents or turn over documents or other materials. Instead, require them to direct all requests to the manager, who can then notify the regional manager and/or your attorney.

Be sure your entire staff know to direct requests to the appropriate person. They should understand that it is lawful to refer the agent or officer to the supervising manager, and that they don’t need to respond immediately to any request. Any inquiry from a law enforcement officer should be immediately brought to the attention of management before any steps are taken to comply with it.

Step #2: Get Proof of Identity

Make sure the people you’re dealing with are really law enforcement officers. All sorts of people might try to get confidential information about residents, such as repo men, con artists, or other criminals. If you give one of these people information about a resident, the resident can sue you for violating his privacy or fair housing rules.

First, ask what department or agency the law enforcement officers work for. If people won’t answer this question, they’re probably not real officers. There are no “secret agencies.”

Then ask for photo identification issued by that department or agency and copy the ID for your records. All federal and local law enforcement officers carry photo IDs.

Don’t accept a badge as proof of ID. You can buy authentic police badges at pawnshops. Only a photo ID is adequate proof that a person is really a law enforcement officer. If someone claiming to be an FBI agent or police officer won’t show you an ID, then he’s not really what he claims to be. If this happens, ask the person to leave, or call 911 and tell the operator that someone at your site is impersonating a law enforcement officer.

If you get ID but you’re still skeptical, check further. You can call the agency they work for and verify that it has officers or agents at your site executing a court order.

Step #3: Don’t Answer Any Questions About Residents

You can still be sued for giving legitimate law enforcement officers confidential information about residents if the officers don’t have a legal right to the information. For instance, sometimes officers will come to you asking questions about a resident or wanting to know who lives in a specific apartment. You may want to be cooperative and help the officers with their investigation. But you risk getting hit with a lawsuit for violating a resident’s privacy if you volunteer confidential information. When officers ask you questions about residents, tell the officers that you can’t release any information about residents and can’t give the officers documents containing this information without a court order.

For example, officers may ask you for a resident’s Social Security number or bank account information or for information about the resident’s recent activities. Don’t release this information; instead, ask the officers to come back with a court order. A court order won’t require you to answer questions but will require you to turn over relevant documents containing the requested information—for example, “all documents related to Apartment X at XYZ Apartments” or “all documents containing income information for Jane Roe.” Most privacy laws protect you from liability if you turn over confidential information contained in documents in response to a valid court order.

Don’t answer even seemingly nonconfidential questions, such as “Who lives in Apartment 3B?” unless your attorney has assured you that it’s okay to answer these types of questions. Although you can safely answer some basic questions about residents without violating their privacy (for instance, Does John Doe live here?), it’s wise not to try to figure out on the spot which information you can divulge without violating residents’ privacy.

Law enforcement officers armed with a court order won’t wait for your attorney to respond to go about their work. But if you’ve already spoken to your attorney and know what steps to take, you’ll be prepared to follow any specific instructions she has and won’t have to scramble to get legal advice at the last minute. And in cases where the officers don’t have a court order—especially if they’re just asking questions—your attorney may have specific instructions about what information you may or may not divulge under federal or state privacy laws or what action you should take. Make sure you include your attorney’s instructions in any policy manuals for your staff to follow, as well.

Step #4: Require Proof of Court Order or Search/Arrest Warrant

Sometimes officers will ask you to turn over specific documents containing information they need for their investigation, or want your help with surveillance of a particular unit, or even access to a unit to search the unit or arrest the residents. But before you give the officers the documents or help they need, get proof that the officers have the legal right to the documents or access. What proof you should get depends on whether the law enforcement officers are asking you for documents or access to a unit.

If officers ask you for documents containing confidential information about a resident, ask them for a copy of a court order requiring you to turn over these documents. The order should identify the court and the judge who issued it, the date of issue, and the name of the resident or the address of the unit in question. And it should specify which documents and other materials in your possession you must turn over to the officers. Because court orders are usually more specific than informal requests, requiring them can also ensure that you give officers only the information they need. Don’t question a court order—you must comply with it or risk contempt of court charges.

Make sure the court order is signed by a judge—not a district attorney. If the order requesting documents isn’t signed by a judge, it’s probably what’s known legally as a “subpoena.” Sometimes, officers will come with a subpoena signed by a district attorney or other attorney for a law enforcement agency. A subpoena can look official, but it isn’t the same as a court order signed by a judge.

Remember that a subpoena does not require an immediate response. A manager can choose respond to the subpoena within the time allotted and in conformity with the law. Your site’s attorney should examine the subpoena for any legal defect, including the manner in which it was served, the breadth of its request, its form, or an insufficient showing of good cause made to a court. Though you want to be cooperative, subpoenas can improperly ask for confidential information to which the officers have no legal right. It’s best to wait for a court to determine whether the officers have a legal right to information. If officers come to you with only a subpoena signed by an attorney, tell them you can’t divulge personal information without a court order signed by a judge. And get a copy of the subpoena to give to your attorney so she can talk to the district attorney about the matter. She may instruct you to assemble the material requested to turn over as soon as the officers bring back a court order.

In certain rare instances, officers may ask you to help them monitor a particular resident. For instance, they may ask you to let them stay in an empty unit across the hall from a resident they’re investigating or may ask you for access to certain parts of your site to set up surveillance equipment. If officers ask for your help in surveillance, ask them to show you a court order detailing what help you’re required to provide. This may be the same court order requiring you to turn over documents.

If law enforcement officers want access to a unit, ask them to show you a copy of a warrant allowing them to search the unit or arrest the resident. It’s illegal for an officer to enter a unit without being invited in by the resident or getting a search or arrest warrant, except in limited circumstances, and you can get sued for letting officers into a unit if they don’t have a legal reason.

The most common limited circumstance in which law enforcement officers can get access to a unit without getting a warrant is when officers are in “hot pursuit” of a suspect. If the officers are chasing after a person who runs into his unit, they can smash right through the door to continue the chase. They can also enter if “exigent circumstances” exist such as an immediate danger to the safety of others. But if the officers stop at your office long enough to demand information or to ask for a key to a unit, they’re probably not in hot pursuit or facing exigent circumstances and will need a warrant.

Unlike a subpoena, a search warrant may be executed immediately. As with a court order for documents, the warrant should identify the court and the judge who issued it, the date of issue, and the address of the unit that the officers need access to. The correct resident’s name isn’t important. Some warrants just say “John Doe.”

If you let a bona fide law enforcement officer with an apparently valid warrant into a resident’s unit, the resident probably won’t be able to win a lawsuit against you. That’s because federal and state laws generally require people to cooperate with law enforcement officers who are carrying out their duties. Even if you didn’t cooperate, the law usually protects you if you acted in good faith to help an officer carry out his duties. So generally you’re immune from liability if the resident later sues you. But you’re probably not immune if the people you allow into the unit aren’t really law officers.

Step #5: Keep Records

Law enforcement officials (and people pretending to be law enforcement officials) can be intimidating. But it’s important to stay calm and get the right information. This can help you later if you’re sued. A good way to be sure of getting all the information you need is to have forms in your office on which you can record the identity of the law enforcement officials and information about the court order and search/arrest warrant.

To help you, we’ve created a Model Form: Use Form to Gather Law Enforcement Information. Fill it out when officers come to you with court orders asking for documents containing confidential information about residents or when officers come to you with a search or arrest warrant granting access to a resident’s unit. The form asks you to record the following information:

Officers’ information. Record the officers’ names, identification numbers, agency or department, and contact information. Be sure to get a copy of the photo IDs.

Court order/warrant information. Record the court order/warrant number, order/warrant date, the court that issued the warrant/order, the address and/or the person whom the warrant/order relates to (if any), and the purpose of the court order/warrant. Photocopy the court order/warrant if you can and attach it to your form.

Documents and other materials requested. Check off the specific documents requested in the court order, such as rent rolls, leases, or employment documents.

Other information and assistance requested. Specify any other information or assistance covered by the order, such as surveillance assistance or access to a resident’s unit. If your attorney has given you specific instructions on when you may release information without a court order, record in this section any information you disclose when officers don’t have a court order.

Officers’ certification. Ask the officers to sign the form to confirm that everything is correct. That way, you’ll be protected if it later turns out that the information they gave you was incorrect. Fill out the form and try to get the officers’ signatures before you turn over any documents or information. But don’t worry if the officers refuse to sign. Some agencies or departments won’t permit their officers to do so.