[Code of Federal Regulations]

[Title 28, Volume 1]

[Revised as of July 1, 2005]

From the U.S. Government Printing Office via GPO Access

[CITE: 28CFR16.26]



[Page 282-283]

 

                    TITLE 28--JUDICIAL ADMINISTRATION

 

                    CHAPTER I--DEPARTMENT OF JUSTICE

 

PART 16_PRODUCTION OR DISCLOSURE OF MATERIAL OR INFORMATION--Table of 

Contents

 

   Subpart B_Production or Disclosure in Federal and State Proceedings

 

Sec. 16.26  Considerations in determining whether production or 

disclosure should be made pursuant to a demand.



    (a) In deciding whether to make disclosures pursuant to a demand, 

Department officials and attorneys should consider:

    (1) Whether such disclosure is appropriate under the rules of 

procedure governing the case or matter in which the demand arose, and

    (2) Whether disclosure is appropriate under the relevant substantive 

law concerning privilege.

    (b) Among the demands in response to which disclosure will not be 

made by any Department official are those demands with respect to which 

any of the following factors exist:

    (1) Disclosure would violate a statute, such as the income tax laws, 

26 U.S.C. 6103 and 7213, or a rule of procedure, such as the grand jury 

secrecy rule, F.R.Cr.P., Rule 6(e),

    (2) Disclosure would violate a specific regulation;

    (3) Disclosure would reveal classified information, unless 

appropriately declassified by the originating agency,

    (4) Disclosure would reveal a confidential source or informant, 

unless the investigative agency and the source or informant have no 

objection,

    (5) Disclosure would reveal investigatory records compiled for law 

enforcement purposes, and would interfere with enforcement proceedings 

or disclose investigative techniques and procedures the effectiveness of 

which would thereby be impaired,

    (6) Disclosure would improperly reveal trade secrets without the 

owner's consent.

    (c) In all cases not involving considerations specified in 

paragraphs (b)(1) through (b)(6) of this section, the Deputy or 

Associate Attorney General will authorize disclosure unless, in that 

person's judgment, after considering paragraph (a) of this section, 

disclosure is unwarranted. The Deputy or Associate Attorney General will 

not approve disclosure if the circumstances specified in paragraphs 

(b)(1) through (b)(3) of this section exist. The Deputy or Associate 

Attorney General will not approve disclosure if any of the conditions in 

paragraphs (b)(4) through (b)(6)



[[Page 283]]



of this section exist, unless the Deputy or Associate Attorney General 

determines that the administration of justice requires disclosure. In 

this regard, if disclosure is necessary to pursue a civil or criminal 

prosecution or affirmative relief, such as an injunction, consideration 

shall be given to:

    (1) The seriousness of the violation or crime involved,

    (2) The past history or criminal record of the violator or accused,

    (3) The importance of the relief sought,

    (4) The importance of the legal issues presented,

    (5) Other matters brought to the attention of the Deputy or 

Associate Attorney General.

    (d) Assistant Attorneys General, U.S. Attorneys, the Director of the 

EOUST, U.S. Trustees, and their designees, are authorized to issue 

instructions to attorneys and to adopt supervisory practices, consistent 

with this subpart, in order to help foster consistent application of the 

foregoing standards and the requirements of this subpart.