[Code of Federal Regulations]
[Title 28, Volume 1]
[Revised as of July 1, 2008]
From the U.S. Government Printing Office via GPO Access
[CITE: 28CFR16.26]

[Page 282]
 
                    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) 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.