[Federal Register: March 17, 2003 (Volume 68, Number 51)]
[Rules and Regulations]
[Page 12584-12588]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr17mr03-7]
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DEPARTMENT OF THE TREASURY
Departmental Offices
31 CFR Part 1
RIN 1505-AA97
Disclosure of Records in Legal Proceedings
AGENCY: Departmental Offices, Treasury.
ACTION: Interim final rule.
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SUMMARY: This interim final rule amends Treasury's regulations that
govern access to information and records in connection with legal
proceedings, including litigation in which neither the United States
nor the Department of the Treasury is a party. The amendments elaborate
on the procedures used when determining whether employees in the
Departmental Offices will be permitted to testify or provide records
relating to their official duties when they are directly subpoenaed or
otherwise requested to testify. The amendments also specify and clarify
the criteria that Treasury officials use when deciding whether to allow
an employee to testimony or provide records.
DATES: This interim final rule is effective March 17, 2003. Written
comments may be submitted by April 16, 2003.
ADDRESSES: Submit written comments to Thomas M. McGivern, Counselor to
the General Counsel, Department of the Treasury, 1500 Pennsylvania
Avenue, NW., Room 3000, Washington, DC 20220.
FOR FURTHER INFORMATION CONTACT: Tom McGivern, Counselor to the General
Counsel, at (202) 622-2317 or Traci J. Sanders, Deputy Counselor, at
(202) 622-2744 (not toll-free numbers).
SUPPLEMENTARY INFORMATION:
I. Background
Under 5 U.S.C. 301, heads of Executive or military departments may
prescribe regulations governing the conduct of its employees and the
custody, use, and preservation of the department's records, papers, and
property. Many departments and agencies have promulgated such
regulations to provide procedures for the disclosure of official
records and
[[Page 12585]]
information. Generally, these are termed Touhy regulations, after the
Supreme Court's decision in United States ex rel. Touhy v. Regan, 340
U.S. 462 (1951). In that case, the Supreme Court held that an agency
employee could not be held in contempt for refusing to disclose agency
records or information when following instructions of his or her
supervisor regarding the disclosure that were issued pursuant to agency
regulations. As such, an agency's Touhy regulations are the
instructions agency employees are to follow when those employees
receive requests or demands to testify or otherwise disclose agency
records or information.
Treasury's Touhy regulations are codified in sections 1.8 through
1.12 of title 31 of the Code of Federal Regulations. These regulations
provide that employees of the Departmental Offices of the Department of
the Treasury may not disclose documents or information in response to a
demand or other order of a court or any other authority without first
being authorized to do so. The purpose of these regulations is to
conserve valuable agency resources, protect Treasury employees from
becoming enmeshed in litigation, and to protect sensitive government
information and decision making processes.
This interim final rule revises the regulations to prescribe the
factors Treasury officials should consider when deciding whether to
allow disclosure of documents and information and which officials may
make these decisions. This rule also makes a number of clarifying and
technical amendments to the current regulations.
II. Analysis of the Interim Final Rule
Section 1.8 Scope
This section is amended to exclude references to the United States
Savings Bonds Division and the United States Secret Service. The
Savings Bond Division is currently a part of the Bureau of the Public
Debt and the Secret Service will become a component of the Department
of Homeland Security on March 1, 2003. This section also is amended to
make clear that all offices and bureaus of the Department are covered
by this subpart, except to the extent that the bureaus enact their own
regulations governing the subject matter of a provision of this
subpart.
Section 1.11 Testimony or the Production of Records in a Court or Other
Proceeding
This section sets forth the policies and procedures of the
Department regarding the testimony of employees as witnesses in legal
proceedings and the production or disclosure of Treasury documents for
use in legal proceedings.
Paragraph (a) describes the applicability of section 1.11. It
specifies that section 1.11 does not apply (1) to an employee's
testimony regarding matters that are unrelated to the official business
of the Department and (2) to access to records pursuant to the Freedom
of Information Act, the Privacy Act, or the Trade Secrets Act.
Paragraph (a) also clarifies that the procedures of section 1.11 only
provide guidance for the internal operations of the Department and do
not create any rights or benefits enforceable at law by a party against
the United States.
Paragraph (b) defines various terms used in section 1.11.
Paragraph (c) sets forth the general policy of the Department
concerning requests that employees testify or provide documents or
other information in litigation. This policy provides that employees
may not respond to a demand, produce any documents, provide testimony
regarding any information relating to, or based upon Department
documents, or disclose any information or produce materials acquired as
part of the performance of that employee's official duties or official
status, without the prior authorization of the General Counsel or the
appropriate agency counsel.
Paragraph (d) sets forth procedures applicable to requests for
testimony or the production of documents. Paragraph (d)(1) provides
that requests directed at the Department for testimony by an employee
of the Departmental Offices or for the production of documents are to
be directed to the General Counsel of the Department. Requests for
testimony by an employee of a Treasury office or bureau are to be
directed to the Chief or Legal Counsel of the office or bureau.
Paragraph (d)(2) provides that subpoenas or other requests for
testimony or the production of documents directed at a Department
employee be served in accordance with the Federal Rules of Civil or
Criminal Procedure, or applicable State procedure.
Paragraph (d)(3) provides that any request for testimony or the
production of documents in litigation in which neither the Department
nor the United States is a party be supported by an affidavit setting
forth the nature of the litigation, describing the nature of the
testimony and/or documents sought, and explaining why the testimony
and/or documents are desired.
Paragraph (d)(4) provides that employees may not give testimony or
produce documents in connection with legal proceedings without the
approval of agency counsel.
Paragraph (e) sets forth the factors to be considered by agency
counsel when reviewing requests for testimony or records. These factors
include (1) the burden on government resources, (2) applicable
privileges, and (3) the potential release of classified documents. The
factors enumerated in paragraph (e) are not exclusive and other
relevant factors may be considered in appropriate circumstances.
Paragraph (f) provides that requests for employees to provide
expert testimony shall be denied except in cases of exceptional need
and when the matter is not adverse to the interests of the Department.
This provision is designed to ensure that the Department's resources
are not consumed by repeated requests for employee expert testimony.
This provision also allows former employees who hire themselves out as
experts in the subject area in which they worked while with the
government to provide testimony, as long as the testimony involves only
the employee's general expertise.
Paragraph (g) sets forth procedures to be followed by an employee
when agency counsel determines that it is not appropriate to comply
with a request for testimony or the production of documents.
Section 1.12 Regulations Not Applicable to Official Request
This section currently provides that subpart B does not apply to
official requests made by other government agencies or officials,
unless it appears that granting a request would be in violation of law
or inimical to the public interest. The interim final rule clarifies
that agency counsel should be consulted if an employee has any doubt
concerning the applicability of this section to a particular request.
III. Procedural Requirements
Because this rule relates to agency management and personnel, and
because it merely amends Treasury's existing regulations to more
closely parallel similar regulations adopted by other Federal agencies,
it is not subject to notice and public procedure pursuant to 5 U.S.C.
553(a)(2) and (b)(B). For the same reasons, a delayed effective date is
not required pursuant to 5 U.S.C. 553(a)(2) and (d)(3). Nevertheless,
the Department will consider any public comments on this interim final
rule before issuing a final rule.
Because no notice of proposed rulemaking is required, the
provisions
[[Page 12586]]
of the Regulatory Flexibility Act (5 U.S.C. chapter 6) do not apply.
It has been determined that this interim final rule is not a
significant regulatory action for purposes of Executive Order 12866.
List of Subjects in 31 CFR Part 1
Courts, Freedom of information, Government employees, and Privacy.
Therefore, for the reasons discussed in the preamble, 31 CFR part 1
is amended as set forth below:
PART 1--[AMENDED]
1. The authority citation for part 1 continues to read as follows:
Authority: 5 U.S.C. 301 and 31 U.S.C. 321. Subpart A also issued
under 5 U.S.C. 552, as amended. Subpart C also issued under 5 U.S.C.
552a.
2. The second sentence of Sec. 1.8 is amended by removing the
references to the United States Savings Bond Division and the United
States Secret Service. The amended sentence reads as follows:
Sec. 1.8 Scope.
* * * This subpart is applicable to the Departmental Offices and to
the bureaus of the Department as defined in Sec. 1.1(a) of this part,
except to the extent that bureaus of the Department have adopted
separate guidance governing the subject matter of a provision of this
subpart.
3. Section 1.9 is republished and reads as follows:
Sec. 1.9 Records not to be otherwise withdrawn or disclosed.
Except in accordance with this part, or as otherwise authorized,
Treasury Department officers and employees are prohibited from making
records or duplicates available to any person who is not an officer or
employee of the Department, and are prohibited from withdrawing any
such records or duplicates from the files, possession or control of the
Department.
4. Section 1.10(a) is revised to read as follows:
Sec. 1.10 Oral information.
(a) Officers and employees of the Department may, in response to
requests, orally provide information contained in records of the
Department that are determined to be available to the public. If the
obtaining of such information requires a search of records, a written
request and the payment of the fee for a record search set forth in
Sec. 1.6 will be required.
* * * * *
5. Section 1.11 is revised to read as follows:
Sec. 1.11 Testimony or the production of records in a court or other
proceeding.
(a) Applicability. (1) This section sets forth the policies and
procedures of the Department regarding the testimony of employees and
former employees as witnesses in legal proceedings and the production
or disclosure of information contained in Department documents for use
in legal proceedings pursuant to a request, order, or subpoena
(collectively referred to in this subpart as a demand).
(2) This section does not apply to any legal proceeding in which an
employee is to testify while on leave status regarding facts or events
that are unrelated to the official business of the Department.
(3) (i) Nothing in this section affects the rights and procedures
governing public access to records pursuant to the Freedom of
Information Act (5 U.S.C. 552) or the Privacy Act (5 U.S.C. 552a).
(ii) Demands in legal proceedings for the production of records, or
for the testimony of Department employees regarding information
protected by the Privacy Act (5 U.S.C. 552a), the Trade Secrets Act (18
U.S.C. 1905), or other confidentiality statutes, must satisfy the
requirements for disclosure set forth in those statutes and the
applicable regulations of this part before the records may be provided
or testimony given.
(4) This section is intended only to provide guidance for the
internal operations of the Department and to inform the public about
Department procedures concerning the service of process and responses
to demands or requests, and the procedures specified in this section,
or the failure of any Treasury employee to follow the procedures
specified in this section, are not intended to, do not, and may not be
relied upon to create a right or benefit, substantive or procedural,
enforceable at law by a party against the United States.
(b) Definitions. For purposes of this section:
(1) Agency counsel means:
(i) With respect to the Departmental Offices, the General Counsel;
and
(ii) With respect to a bureau or office of the Department, the
Chief Counsel or Legal Counsel (or his/her designee) of such bureau or
office.
(2) Demand means a request, order, or subpoena for testimony or
documents related to or for possible use in a legal proceeding.
(3) Department means the United States Department of the Treasury.
(4) Document means any record or other property, no matter what
media and including copies thereof, held by the Department, including
without limitation, official letters, telegrams, memoranda, reports,
studies, calendar and diary entries, maps, graphs, pamphlets, notes,
charts, tabulations, analyses, statistical or informational
accumulations, any kind of summaries of meetings and conversations,
film impressions, magnetic tapes and sound or mechanical reproductions.
(5) Employee means all employees or officers of the Department,
including contractors and any other individuals who have been appointed
by, or are subject to the supervision, jurisdiction or control of the
Secretary. The procedures established within this subpart also apply to
former employees of the Department where specifically noted.
(6) General Counsel means the General Counsel of the Department or
other Department employee to whom the General Counsel has delegated
authority to act under this subpart.
(7) Legal proceeding means all pretrial, trial and post trial
stages of all existing or reasonably anticipated judicial or
administrative actions, hearings, investigations, or similar
proceedings before courts, commissions, boards, grand juries, or other
tribunals, foreign or domestic. This phrase includes all phases of
discovery as well as responses to formal or informal requests by
attorneys or others involved in legal proceedings.
(8) Official business means the authorized business of the
Department.
(9) Secretary means the Secretary of the Treasury.
(10) Testimony means a statement in any form, including personal
appearances before a court or other legal tribunal, interviews,
depositions, telephonic, televised, or videotaped statements or any
responses given during discovery or similar proceedings, which response
would involve more than the production of documents.
(c) Department policy. No current or former employee shall, in
response to a demand, produce any Department documents, provide
testimony regarding any information relating to or based upon
Department documents, or disclose any information or produce materials
acquired as part of the performance of that employee's official duties
or official status, without the prior authorization of the General
Counsel or the appropriate agency counsel.
(d) Procedures for demand for testimony or production of documents.
(1) A demand directed to the Department for the testimony of a
Department employee or for the production of documents shall be served
in accordance with the Federal Rules of Civil Procedure, Federal Rules
[[Page 12587]]
of Criminal Procedure, or applicable state procedures and shall be
directed to the General Counsel, Department of the Treasury, 1500
Pennsylvania Avenue, NW., Washington, DC 20220, or to the Chief or
Legal Counsel of the concerned Department component. Acceptance of a
demand 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 the applicable laws or rules.
(2) A subpoena or other demand for testimony directed to an
employee or former employee shall be served in accordance with the
Federal Rules of Civil or Criminal Procedure or applicable State
procedure and a copy of the subpoena shall be sent to agency counsel.
(3)(i) In court cases in which the United States or the Department
is not a party, where the giving of testimony or the production of
documents by the Department or a current or former employee is desired,
an affidavit (or if that is not feasible, a statement) by the litigant
or the litigant's attorney, setting forth the information with respect
to which the testimony or production is desired, must be submitted in
order to obtain a decision concerning whether such testimony or
production will be authorized. Such information shall include: the
title of the legal proceeding, the forum, the requesting party's
interest in the legal proceeding, the reason for the demand, a showing
that the desired testimony or document is not reasonably available from
any other source and, if testimony is requested, the intended use of
the testimony, a general summary of the desired testimony, and a
showing that no document could be provided and used in lieu of
testimony. The purpose of this requirement is to assist agency counsel
in making an informed decision regarding whether testimony or the
production of document should be authorized. Permission to testify or
produce documents will, in all cases, be limited to the information set
forth in the affidavit or statement, or to such portions thereof as may
be deemed proper.
(ii) Agency counsel may consult or negotiate with an attorney for a
party, or the party if not represented by an attorney, to refine or
limit a demand so that compliance is less burdensome or obtain
information necessary to make the determination required by paragraph
(e) of this section. Failure of the attorney or party to cooperate in
good faith to enable agency counsel to make an informed determination
under this subpart may serve, where appropriate, as a basis for a
determination not to comply with the demand.
(iii) A determination under this subpart to comply or not to comply
with a demand is without prejudice as to any formal assertion or waiver
of privilege, lack of relevance, technical deficiency or any other
ground for noncompliance.
(4)(i) Employees shall immediately refer all inquiries and demands
made on the Department to agency counsel.
(ii) An employee who receives a subpoena shall immediately forward
the subpoena to agency counsel. Agency counsel will determine the
manner in which to respond to the subpoena.
(e) Factors to be considered by agency counsel. (1) In deciding
whether to authorize the release of official information or the
testimony of personnel concerning official information (hereafter
referred to as ``the disclosure'') agency counsel shall consider the
following factors:
(i) Whether the request or demand is unduly burdensome;
(ii) Whether the request would involve the Department in
controversial issues unrelated to the Department's mission;
(iii) Whether the time and money of the United States would be used
for private purposes;
(iv) The extent to which the time of employees for conducting
official business would be compromised;
(v) Whether the public might misconstrue variances between personal
opinions of employees and Department policy;
(vi) Whether the request demonstrates that the information
requested is relevant and material to the action pending, genuinely
necessary to the proceeding, unavailable from other sources, and
reasonable in its scope;
(vii) Whether the number of similar requests would have a
cumulative effect on the expenditure of agency resources;
(viii) Whether disclosure otherwise would be inappropriate under
the circumstances; and
(ix) Any other factor that is appropriate.
(2) 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 exists:
(i) The disclosure would violate a statute, Executive order, or
regulation;
(ii) The integrity of the administrative and deliberative processes
of the Department would be compromised;
(iii) The disclosure would not be appropriate under the rules of
procedure governing the case or matter in which the demand arose;
(iv) The disclosure, including release in camera, is not
appropriate or necessary under the relevant substantive law concerning
privilege;
(v) The disclosure, except when in camera and necessary to assert a
claim of privilege, would reveal information properly classified or
other matters exempt from unrestricted disclosure; or
(vi) The disclosure would interfere with ongoing enforcement
proceedings, compromise constitutional rights, reveal the identity of
an intelligence source or confidential informant, or disclose trade
secrets or similarly confidential commercial or financial information.
(f) Requests for opinion or expert testimony. (1) Subject to 5 CFR
2635.805, An employee shall not provide, with or without compensation,
opinion or expert testimony concerning official information, subjects,
or activities, except on behalf of the United States or a party
represented by the Department of Justice, without written approval of
agency counsel.
(2) 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 Department or the United States, agency counsel
may, in writing, grant authorization for an employee, or former
employee, to appear and testify at no expense to the United States.
(3) Any expert or opinion testimony by a former employee of the
Department shall be excepted from Sec. 1.11(f)(1) where the testimony
involves only general expertise gained while employed at the
Department.
(g) Procedures when agency counsel directs an employee not to
testify or provide documents. (1) If agency counsel determines that an
employee or former employee should not comply with a subpoena or other
request for testimony or the production of documents, agency counsel
will so inform the employee and the party who submitted the subpoena or
made the request.
(2) If, despite the determination of the agency counsel that
testimony should not be given and/or documents not be produced, a court
of competent jurisdiction or other appropriate authority orders the
employee or former employee to testify and/or produce documents, the
employee shall notify agency counsel of such order.
(i) If agency counsel determines that no further legal review of,
or challenge to, the order will be sought, the employee or former
employee shall comply with the order.
(ii) If agency counsel determines to challenge the order, or that
further legal
[[Page 12588]]
review is necessary, the employee or former employee should not comply
with the order. Where necessary, the employee should appear at the time
and place set forth in the subpoena. If legal counsel cannot appear on
behalf of the employee, the employee should produce a copy of this
subpart and respectfully inform the legal tribunal that he/she has been
advised by counsel not to provide the requested testimony and/or
produce documents. If the legal tribunal rules that the subpoena must
be complied with, the employee shall respectfully decline to comply,
citing this section and United States ex rel. Touhy v. Ragen, 340 U.S.
462 (1951).
6. The second sentence of Sec. 1.12 is revised to read as follows:
Sec. 1.12 Regulations not applicable to official request.
* * * Cases of doubt should be referred for decision to agency
counsel (as defined in Sec. 1.11(b)(1)).
Dated: March 11, 2003.
David D. Aufhauser,
General Counsel.
[FR Doc. 03-6247 Filed 3-14-03; 8:45 am]
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