[Federal Register: January 27, 2003 (Volume 68, Number 17)]
[Rules and Regulations]
[Page 4070-4073]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr27ja03-20]
[[Page 4070]]
-----------------------------------------------------------------------
DEPARTMENT OF HOMELAND SECURITY
Office of the Secretary
6 CFR Part 5
RIN 1601-AA01
Production or Disclosure of Official Information in Connection
With Legal Proceedings
AGENCY: Office of the Secretary, Homeland Security.
ACTION: Interim final rule.
-----------------------------------------------------------------------
SUMMARY: This interim final rule establishes procedures for the public
to obtain the production or disclosure of official information in
connection with litigation, including litigation to which the
Department of Homeland Security is not a party.
DATES: This interim final rule is effective January 27, 2003. Written
comments may be submitted by February 26, 2003.
ADDRESSES: Submit written comments (preferably an original and three
copies) to Associate General Counsel (General Law), Department of
Homeland Security, Washington, DC.
FOR FURTHER INFORMATION CONTACT: Ellen McClain, (202) 612-1952, not a
toll free call.
SUPPLEMENTARY INFORMATION:
I. Background
On November 25, 2002, the President signed into law the Homeland
Security Act (Pub. L. 107-296), which created the new Department of
Homeland Security (DHS). Pursuant to the provisions of the Act, the new
Department came into existence on January 24, 2003.
In order to establish procedures to facilitate public interaction
with DHS, DHS is issuing an initial series of proposed and interim
final regulations.
II. The Interim Final Rule
This interim final rule establishes procedures governing the
disclosure of information in connection with litigation and certain
other types of proceedings.
III. Procedural Requirements
Because the DHS came into existence on January 24, 2003, it is
necessary to promptly establish procedures to facilitate the
interaction of the public with the Department. This interim final rule
generally parallels the procedures concerning the disclosure of
information in litigation currently used by other agencies.
Accordingly, the Department has determined that notice and public
procedure are impracticable, unnecessary and contrary to the public
interest pursuant to 5 U.S.C. 553(b)(B). For the same reasons, the
Department has determined that this interim rule should be issued
without a delayed effective date pursuant to 5 U.S.C. 553(d)(3).
Because no notice of proposed rulemaking is required, the
provisions of the Regulatory Flexibility Act (5 U.S.C. chapter 6) do
not apply.
It has been determined that this rulemaking is not a significant
regulatory action for the purposes of Executive Order 12866.
Accordingly, a regulatory impact analysis is not required.
List of Subjects in 6 CFR Part 5
Classified information, Courts, Freedom of information, Government
employees, Privacy.
Authority and Issuance
For the reasons set forth above, 6 CFR Part 5 is amended as
follows:
PART 5--DISCLOSURE OF RECORDS AND INFORMATION
1. The authority citation for part 5 continues to read as follows:
Authority: Pub. L. 107-296, 116 Stat. 2135 (6 U.S.C. 101 et
seq.); 5 U.S.C. 301. Subpart A also issued under 5 U.S.C. 552.
Subpart B also issued under 5 U.S.C. 552a.
2. Part 5 is amended by adding subpart C (Sec. Sec. 5.41 through
5.49) to read as follows:
Subpart C--Disclosure of Information in Litigation
Sec.
5.41 Purpose and scope; definitions.
5.42 Service of summonses and complaints.
5.43 Service of subpoenas, court orders, and other demands or
requests for official information or action.
5.44 Testimony and production of documents prohibited unless
approved by appropriate Department officials.
5.45 Procedure when testimony or production of documents is sought;
general.
5.46 Procedure when response to demand is required prior to
receiving instructions.
5.47 Procedure in the event of an adverse ruling.
5.48 Considerations in determining whether the Department will
comply with a demand or request.
5.49 Prohibition on providing expert or opinion testimony.
Sec. 5.41 Purpose and scope; definitions.
(a) This subpart C sets forth the procedures to be followed with
respect to:
(1) Service of summonses and complaints or other requests or
demands directed to the Department of Homeland Security (Department) or
to any Department employee or former employee in connection with
federal or state litigation arising out of or involving the performance
of official activities of the Department; and
(2) The oral or written disclosure, in response to subpoenas,
orders, or other requests or demands of federal or state judicial or
quasi-judicial or administrative authority as well as state legislative
authorities (collectively, ``demands''), whether civil or criminal in
nature, or in response to requests for depositions, affidavits,
admissions, responses to interrogatories, document production,
interviews, or other litigation-related matters, including pursuant to
the Federal Rules of Civil Procedure, the Federal Rules of Criminal
Procedure, or applicable state rules (collectively, ``requests''), of
any material contained in the files of the Department, any information
relating to material contained in the files of the Department, or any
information acquired while the subject of the demand or request is or
was employed by the Department, or served as Secretary of the
Department, as part of the performance of that person's duties or by
virtue of that person's official status.
(b) The provisions established by this subpart shall apply to all
Department components that are transferred to the Department. Except to
the extent a Department component has adopted separate guidance
governing the subject matter of a provision of this subpart, the
provisions of this subpart shall apply to each component of the
Department. Departmental components may issue their own guidance under
this subpart subject to the approval of the General Counsel of the
Department.
(c) For purposes of this subpart, and except as the Department may
otherwise determine in a particular case, the term employee includes
all former Secretaries of Homeland Security and all employees of the
Department of Homeland Security or other federal agencies who are or
were appointed by, or subject to the supervision, jurisdiction, or
control of the Secretary of Homeland Security, whether residing or
working in the United States or abroad, including United States
nationals, foreign nationals, and contractors. The procedures
established within this subpart also apply to former employees of the
Department where specifically noted.
(d) For purposes of this subpart, the term litigation encompasses
all pre-trial,
[[Page 4071]]
trial, and post-trial stages of all judicial or administrative actions,
hearings, investigations, or similar proceedings before courts,
commissions, boards (including the Board of Appellate Review), grand
juries, or other judicial or quasi-judicial bodies or tribunals,
whether criminal, civil, or administrative in nature. This subpart
governs, inter alia, responses to discovery requests, depositions, and
other pre-trial, trial, or post-trial proceedings, as well as responses
to informal requests by attorneys or others in situations involving
litigation. However, this subpart shall not apply to any claims against
the Department by Department of Homeland Security employees (present or
former), or applicants for Department employment, for which
jurisdiction resides with the U.S. Equal Employment Opportunity
Commission; the U.S. Merit Systems Protection Board; the Office of
Special Counsel; the Federal Labor Relations Authority; the Foreign
Service Labor Relations Board; the Foreign Service Grievance Board; or
a labor arbitrator operating under a collective bargaining agreement
between the Department and a labor organization representing Department
employees; or their successor agencies or entities.
(e) For purposes of this subpart, official information means all
information of any kind, however stored, that is in the custody and
control of the Department, relates to information in the custody and
control of the Department, or was acquired by Department employees, or
former employees, as part of their official duties or because of their
official status within the Department while such individuals were
employed by or served on behalf of the Department.
(f) Nothing in this subpart affects disclosure of information under
the Freedom of Information Act (FOIA), 5 U.S.C. 552, the Privacy Act, 5
U.S.C. 552a, Executive Order 12958 on national security information (3
CFR, 1995 Comp., p. 333), the Government in the Sunshine Act, 5 U.S.C.
552b, the Department's implementing regulations or pursuant to
congressional subpoena. Nothing in this subpart permits disclosure of
information by the Department, its present and former employees, or the
Secretary, that is protected or prohibited by statute or other
applicable law.
(g) This subpart is intended only to inform the public about
Department procedures concerning the service of process and responses
to demands or requests and is not intended to and does not create, and
may not be relied upon to create any right or benefit, substantive or
procedural, enforceable at law by a party against the Department or the
United States.
(h) Nothing in this subpart affects the rules and procedures, under
applicable U.S. law and international conventions, governing diplomatic
and consular immunity.
(i) Nothing in this subpart affects the disclosure of official
information to other federal agencies or Department of Justice
attorneys in connection with litigation conducted on behalf or in
defense of the United States, its agencies, officers, and employees, or
litigation in which the United States has an interest; or to federal,
state, local, or foreign prosecuting and law enforcement authorities in
conjunction with criminal law enforcement investigations, prosecutions,
or other proceedings, e.g., extradition, deportation.
Sec. 5.42 Service of summonses and complaints.
(a) Only the Office of the General Counsel is authorized to receive
and accept on behalf of the Department summonses or complaints sought
to be served upon the Department, the Secretary, or Department
employees. All such documents should be delivered or addressed to the
Office of the General Counsel, United States Department of Homeland
Security, Washington, DC, 20258. The authorization for receipt shall in
no way affect the requirements of service elsewhere provided in
applicable rules and regulations.
(b) In the event any summons or complaint described in Sec.
5.41(a) is delivered to an employee of the Department other than in the
manner specified in this part, the recipient thereof shall decline to
accept the proffered service and may notify the person attempting to
make service of the Departmental regulations set forth herein.
(c) Except as otherwise provided Sec. Sec. 5.42(d) and 5.43(c),
the Department is not an authorized agent for service of process with
respect to civil litigation against Department employees purely in
their personal, non-official capacity. Copies of summonses or
complaints directed to Department employees in connection with legal
proceedings arising out of the performance of official duties may,
however, be served upon the Office of the General Counsel.
(d) Although the Department is not an agent for the service of
process upon its employees with respect to purely personal, non-
official litigation, the Department recognizes that its employees
should not use their official positions to evade their personal
obligations and will, therefore, counsel and encourage Department
employees to accept service of process in appropriate cases.
(e) Documents for which the Office of the General Counsel accepts
service in official capacity only shall be stamped ``Service Accepted
in Official Capacity Only''. Acceptance of service shall not constitute
an admission or waiver with respect to jurisdiction, propriety of
service, improper venue, or any other defense in law or equity
available under applicable laws or rules.
Sec. 5.43 Service of subpoenas, court orders, and other demands or
requests for official information or action.
(a) Except in cases in which the Department is represented by legal
counsel who have entered an appearance or otherwise given notice of
their representation, only the Office of the General Counsel is
authorized to receive and accept subpoenas, or other demands or
requests directed to the Secretary, the Department, or any component
thereof, or its employees, whether civil or criminal in nature, for:
(1) Material, including documents, contained in the files of the
Department;
(2) Information, including testimony, affidavits, declarations,
admissions, responses to interrogatories, or informal statements,
relating to material contained in the files of the Department or which
any Department employee acquired in the course and scope of the
performance of his official duties;
(3) Garnishment or attachment of compensation of current or former
employees; or
(4) The performance or non-performance of any official Department
duty.
(b) In the event that any subpoena, demand, or request is sought to
be delivered to a Department employee other than in the manner
prescribed in paragraph (a) of this section, such employee shall, after
consultation with the Office of the General Counsel, decline service
and direct the server of process to the Departmental regulations. If
the subpoena, demand, or other request is nonetheless delivered to the
employee, the employee shall immediately forward a copy of that
document to the Office of the General Counsel.
(c) Except as otherwise provided in this subpart, the Department is
not an agent for service, or otherwise authorized to accept on behalf
of its employees, any subpoenas, show-cause orders, or similar
compulsory process of federal or state courts, or requests from private
individuals or attorneys, which are not related to the employees'
official
[[Page 4072]]
duties except upon the express, written authorization of the individual
Department employee to whom such demand or request is directed.
(d) Acceptance of such documents by the Office of the General
Counsel does not constitute a waiver of any defenses that might
otherwise exist with respect to service under the Federal Rules of
Civil or Criminal Procedure or other applicable rules.
(e) Copies of any subpoenas, show cause orders, or similar
compulsory process of federal or state courts, or requests from private
individuals or attorneys, directed to former employees of the
Department in connection with legal proceedings arising out of the
performance of official duties shall also be served upon the Office of
the General Counsel. The Department shall not, however, serve as an
agent for service for the former employee, nor is the Department
otherwise authorized to accept service on behalf of its former
employees. If the demand involves their official duties, former
employees who receive subpoenas, show cause orders, or similar
compulsory process of federal or state courts should also notify in the
component of the Department in which they were employed if the service
involves their official duties while so employed.
(f) If the subpoena, demand, or other request is nonetheless
delivered to the employee, the employee shall immediately forward a
copy of that document to the Office of the General Counsel.
Sec. 5.44 Testimony and production of documents prohibited unless
approved by appropriate Department officials.
(a) No employee, or former employee, of the Department shall, in
response to a demand or request, including in connection with any
litigation, provide oral or written testimony by deposition,
declaration, affidavit, or otherwise concerning any information
acquired while such person is or was an employee of the Department as
part of the performance of that person's official duties or by virtue
of that person's official status, unless authorized to do so by the
Office of the General Counsel, or as authorized in Sec. 5.44(b).
(b) No employee, or former employee, shall, in response to a demand
or request, including in connection with any litigation, produce any
document or any material acquired as part of the performance of that
employee's duties or by virtue of that employee's official status,
unless authorized to do so by the Office of the General Counsel or the
delegates thereof, as appropriate.
Sec. 5.45 Procedure when testimony or production of documents is
sought; general.
(a) If official information is sought, through testimony or
otherwise, by a request or demand, the party seeking such release or
testimony must (except as otherwise required by federal law or
authorized by the Office of the General Counsel) set forth in writing,
and with as much specificity as possible, the nature and relevance of
the official information sought. Where documents or other materials are
sought, the party should provide a description using the types of
identifying information suggested in Sec. 5.3(b). Subject to Sec.
5.47, Department employees may only produce, disclose, release, comment
upon, or testify concerning those matters which were specified in
writing and properly approved by the appropriate Department official
designated in Sec. 5.44. See United States ex rel. Touhy v. Ragen, 340
U.S. 462 (1951). The Office of the General Counsel may waive the
requirement of this subsection in appropriate circumstances.
(b) To the extent it deems necessary or appropriate, the Department
may also require from the party seeking such testimony or documents a
plan of all reasonably foreseeable demands, including but not limited
to the names of all employees and former employees from whom discovery
will be sought, areas of inquiry, expected duration of proceedings
requiring oral testimony, and identification of potentially relevant
documents.
(c) The appropriate Department official designated in Sec. 5.42
will notify the Department employee and such other persons as
circumstances may warrant of its decision regarding compliance with the
request or demand.
(d) The Office of the General Counsel will consult with the
Department of Justice regarding legal representation for Department
employees in appropriate cases.
Sec. 5.46 Procedure when response to demand is required prior to
receiving instructions.
(a) If a response to a demand is required before the appropriate
Department official designated in Sec. 5.44 renders a decision, the
Department, if necessary, will request that the Department of Justice
or the appropriate Department attorney take appropriate steps to stay,
postpone, or obtain relief from the demand pending decision. If
necessary, the attorney will:
(1) Appear with the employee upon whom the demand has been made;
(2) Furnish the court or other authority with a copy of the
regulations contained in this subpart;
(3) Inform the court or other authority that the demand has been,
or is being, as the case may be, referred for the prompt consideration
of the appropriate Department official; and
(4) Respectfully request the court or authority to stay the demand
pending receipt of the requested instructions.
(b) In the event that an immediate demand for production or
disclosure is made in circumstances which would preclude the proper
designation or appearance of a Department of Justice or appropriate
Department attorney on the employee's behalf, the employee, if
necessary, shall respectfully request from the demanding court or
authority for a reasonable stay of proceedings for the purpose of
obtaining instructions from the Department.
Sec. 5.47 Procedure in the event of an adverse ruling.
If a stay of, or other relief from, the effect of the demand in
response to a request made pursuant to Sec. 5.46 is declined or not
obtained, or if the court or other judicial or quasi-judicial authority
declines to stay the effect of the demand in response to a request made
pursuant to Sec. 5.46, or if the court or other authority rules that
the demand must be complied with irrespective of the Department's
instructions not to produce the material or disclose the information
sought, the employee upon whom the demand has been made shall
respectfully decline to comply with the demand, citing this subpart and
United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951).
Sec. 5.48 Considerations in determining whether the Department will
comply with a demand or request
(a) In deciding whether to comply with a demand or request,
Department officials and attorneys shall consider, among any other
pertinent considerations:
(1) Whether such compliance would be unduly burdensome or otherwise
inappropriate under the applicable rules of discovery or the rules of
procedure governing the case or matter in which the demand arose;
(2) Whether compliance is appropriate under the relevant
substantive law concerning privilege or disclosure of information;
(3) The public interest;
(4) The need to conserve the time of Department employees for the
conduct of official business;
(5) The need to avoid spending the time and money of the United
States for private purposes;
[[Page 4073]]
(6) The need to maintain impartiality between private litigants in
cases where a substantial government interest is not implicated;
(7) Whether compliance would have an adverse effect on performance
by the Department of its mission and duties; and
(8) The need to avoid involving the Department in controversial
issues not related to its mission.
(b) Among those demands and requests in response to which
compliance will not ordinarily be authorized are those with respect to
which any of the following factors, inter alia, exist:
(1) Compliance would violate a statute or a rule of procedure;
(2) Compliance would violate a specific regulation or Executive
order;
(3) Compliance would reveal information properly classified in the
interest of national security;
(4) Compliance would reveal confidential commercial or financial
information or trade secrets without the owner's consent;
(5) Compliance would reveal the internal deliberative processes of
the Executive Branch; or
(6) Compliance would potentially impede or prejudice an on-going
law enforcement investigation.
Sec. 5.49 Prohibition on providing expert or opinion testimony.
(a) Except as provided in this section, and subject to 5 CFR
2635.805, Department employees shall not provide opinion or expert
testimony based upon information which they acquired in the scope and
performance of their official Department duties, except on behalf of
the United States or a party represented by the Department of Justice.
(b) Any expert or opinion testimony by a former employee of the
Department shall be excepted from 5.49(a) where the testimony involves
only general expertise gained while employed at the Department.
(c) Upon a showing by the requestor of exceptional need or unique
circumstances and that the anticipated testimony will not be adverse to
the interests of the United States, the appropriate Department official
designated in Sec. 5.44 may, consistent with 5 CFR 2635.805, in their
discretion and with the concurrence of the Office of the General
Counsel, grant special, written authorization for Department employees,
or former employees, to appear and testify as expert witnesses at no
expense to the United States.
(d) If, despite the final determination of the appropriate
Department official designated in Sec. 5.44, a court of competent
jurisdiction or other appropriate authority orders the appearance and
expert or opinion testimony of a current or former Department employee,
that person shall immediately inform the Office of the General Counsel
of such order. If the Office of the General Counsel determines that no
further legal review of or challenge to the court's order will be made,
the Department employee, or former employee, shall comply with the
order. If so directed by the Office of the General Counsel, however,
the employee, or former employee, shall respectfully decline to
testify.
Dated: January 24, 2003.
Tom Ridge,
Secretary of Homeland Security.
[FR Doc. 03-1997 Filed 1-24-03; 11:34 am]
BILLING CODE 4410-10-P