[Federal Register: May 21, 2002 (Volume 67, Number 98)]
[&thnsp;Rules and Regulations]
[Page 35709-35713]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr21my02-1]
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Rules and Regulations
Federal Register
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[[Page 35709]]
OFFICE OF GOVERNMENT ETHICS
5 CFR Part 2608
RIN 3209–AA23
Testimony by OGE Employees Relating to Official Information and
Production of Official Records in Legal Proceedings
AGENCY: Office of Government Ethics (OGE).
ACTION: Final rule.
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SUMMARY: The Office of Government Ethics is adopting as final a
proposed rule, with certain minor changes based primarily on comments
received, that sets forth procedures that requesters have to follow
when making demands on or requests to an OGE employee to produce
official records and information, and provide testimony relating to
official information, in connection with a legal proceeding in which
OGE is not a party. This final rule establishes procedures to respond
to such demands and requests in an orderly and consistent manner. The
rule, among other benefits, will promote uniformity in decisions,
protect confidential information, provide guidance to requesters, and
reduce the potential for both inappropriate disclosures of official
information and wasteful allocation of agency resources.
EFFECTIVE DATE: June 20, 2002.
FOR FURTHER INFORMATION CONTACT: William E. Gressman, Senior Associate
General Counsel, Office of Government Ethics, telephone:
202–208–8000; TDD: 202–208–8025; FAX:
202–208–8037.
SUPPLEMENTARY INFORMATION:
Background
The Office of Government Ethics occasionally receives subpoenas and
requests for OGE employees to provide evidence in litigation or other
legal proceedings in which OGE is not a party. Typically, these
subpoenas and requests are for OGE records that are not available to
the public under the Freedom of Information Act (FOIA). Also, OGE
sometimes receives subpoenas and requests for OGE employees to appear
as witnesses in litigation in conjunction with a request for nonpublic
records. Requesters have sought information, for example, on a
particular filer of a financial disclosure report, a particular nominee
or incumbent or former employee and for any ethics advice that OGE may
have given to that individual, or concerning the nature of ethical
advice that OGE gave to another agency and how OGE arrived at that
advice.
Responding to such demands and requests sometimes results in a
significant disruption in an OGE employee's work schedule. The result
is that employees may be diverted from performing their official duties
in order to respond to requests from parties in litigation. In order to
address this problem, many agencies over the years have issued
“Touhy” regulations that are similar to this final
regulation, governing the circumstances and manner in which an employee
may respond to demands for testimony or for the production of
documents. Such a regulation was upheld by the United States Supreme
Court in United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951).
In Touhy, the Supreme Court held that a Department of Justice (DOJ)
official, acting on order of the Attorney General, could not be held in
contempt for declining to produce records in response to a subpoena.
The employee's refusal was based upon a DOJ regulation that prohibited
disclosure of agency files, documents, records, or information without
the express approval of the Attorney General. The Court upheld the
validity of the DOJ regulation, reasoning that it was appropriate for
the Attorney General to prescribe regulations not inconsistent with law
for the custody, use, and preservation of records, papers, and property
pertaining to DOJ.
On September 24, 2001, OGE published in the Federal Register its
own proposed Touhy regulation, for codification in a new part 2608 of 5
CFR. See 66 FR 48824–48828, which provided for a 60-day public
comment period. The Office of Government Ethics received suggestions on
the rule as proposed from two commenters. As noted below in the summary
of this final rule, we are adopting several minor changes in this final
rule from the rule as proposed, based primarily on those comments.
Moreover, in order to clarify the application of this rule, OGE has
decided to revise the proposed part heading to make express that it
applies to testimony by OGE employees “relating to official
information” (as opposed to private matters), as well as to the
production of official records in legal proceedings. In addition, OGE
has determined to add a reference to 31 U.S.C. 9701 to the new part
2608 authority citation. This statute authorizes agencies to issue
regulations providing for fair and cost-based fees and charges.
Briefly summarized, this final rule prohibits disclosure of
nonpublic official records or testimony by OGE employees unless there
is compliance with the rule (§§&thnsp;2608.201 and 2608.203).
Based on a suggestion of one of the commenters, OGE is dropping the
word “recorded” before the term “interviews” in
the list of types of testimony covered by this regulation. The rule
identifies the factors that OGE will consider in making determinations
in response to such requests and what information requesters must
provide (§§&thnsp;2608.202 and 2608.203). In response to a
comment, OGE has added “otherwise protected information” to
the types of sensitive information enumerated in paragraph (i) of
§&thnsp;2608.202; on its own initiative, OGE is adding the term
“demand,” in addition to request, to the text of paragraph
(d) of that section. The rule also specifies when the request should be
submitted (§&thnsp;2608.203), the time period for review
(§&thnsp;2608.205), potential fees (§&thnsp;2608.301), and,
if a request is granted, any restrictions that may be placed on the
disclosure of records or the appearance of an OGE employee as a witness
(§§&thnsp;2608.207 and 2608.208). As suggested by one of the
commenters, OGE is deleting proposed subparagraph (c)(2) of
§&thnsp;2608.207, which concerned denial of authorization by the
General Counsel for fact testimony if contrary to the best interest of
OGE or the United States, as unnecessary given the overall requirement
for authorization for such testimony in paragraph (c). The Office of
Government Ethics is adopting in this
[[Page 35710]]
final rule two other changes suggested by the commenters. First, OGE is
adding the phrase “when necessary” to the procedure
provided in §&thnsp;2608.209 for informing the court or other
competent authority and seeking a stay when a decision is not made
prior to the time a response is required. This modification from the
section as proposed recognizes that at times there can be informal
resolution of such matters short of seeking a stay. The second change
is that OGE is adding the phrase “unless otherwise advised by the
General Counsel” to the procedure provided in
§&thnsp;2608.210 for personal appearance of an OGE employee when a
stay of a demand (or, as now added by OGE, a request) is denied. This
change likewise recognizes that such denials can sometimes be resolved
instead by written response (see the section's last sentence) or
otherwise.
The charges for witnesses are the same as those provided by the
Federal courts; and the fees related to production of records are the
same as those charged under FOIA. The charges for time spent by an
employee to prepare for testimony and for certification of records by
OGE are authorized under 31 U.S.C. 9701, which permits an agency to
charge for services or things of value that are provided by the agency.
This final rule applies to a broad range of matters in any legal
proceeding in which OGE is not a named party. It also applies to former
and current OGE employees (as well as OGE consultants and advisers).
Former OGE employees are prohibited from testifying about specific
matters for which they had responsibility during their active
employment unless permitted to testify as provided in the rule. They
would not be barred from appearing to testify about general matters
unconnected with the specific matters for which they had
responsibility.
This final regulation will ensure a more efficient use of OGE
resources, minimize the possibility of involving OGE in issues
unrelated to its responsibilities, promote uniformity in responding to
such requests and subpoenas, and maintain the impartiality of OGE in
matters that are in dispute between other parties. It will also serve
OGE's interest in protecting sensitive, confidential, and privileged
information and records that are generated in response to the
requirements in the ethics laws and regulations.
This final OGE rule is internal (not branchwide), and is
essentially procedural, not substantive. It does not create a right to
obtain official records or the official testimony of an OGE employee
nor would it create any additional right or privilege not already
available to OGE to deny any demand or request therefor. However, any
failure to comply with the procedures in this rule would be a basis for
denying a demand or request submitted to OGE.
Matters of Regulatory Procedure
Regulatory Flexibility Act
For purposes of the Regulatory Flexibility Act (5 U.S.C. chapter
6), this final rule will not have a significant economic impact on a
substantial number of small entities. The rule addresses only the
procedures to be followed in the production or disclosure of official
OGE materials and information in litigation where OGE is not a party.
Accordingly, OGE has determined that a Regulatory Flexibility Analysis
is not required.
Unfunded Mandates Reform Act
For purposes of the Unfunded Mandates Reform Act of 1995 (2 U.S.C.
chapter 25, subchapter II), this rule will not significantly or
uniquely affect small governments and will not result in increased
expenditures by State, local, and tribal governments, in the aggregate,
or by the private sector, of $100 million or more (as adjusted for
inflation) in any one year.
Executive Order 12866
In issuing this regulation, the Office of Government Ethics has
adhered to the regulatory philosophy and the applicable principles of
regulation as set forth in section 1 of Executive Order 12866,
Regulatory Planning and Review. This final rule has not been reviewed
by the Office of Management and Budget under that Executive order since
it is not a significant regulatory action within the meaning of the
Executive order.
Executive Order 12988
As Director of the Office of Government Ethics, I have reviewed
this final regulation in light of section 3 of Executive Order 12988,
Civil Justice Reform, and certify that it meets the applicable
standards provided therein.
Paperwork Reduction Act
The Paperwork Reduction Act (44 U.S.C. chapter 35) does not apply
because this final regulation does not contain information collection
requirements that require approval by the Office of Management and
Budget. The Office of Government Ethics expects the collection of
information that is called for by the regulation would involve fewer
than ten persons each year.
Congressional Review Act
The Office of Government Ethics has determined that this rulemaking
involves a nonmajor rule under the Congressional Review Act (5 U.S.C.
chapter 8) and has submitted a report thereon to the U.S. Senate, House
of Representatives and General Accounting Office in accordance with
that law.
List of Subjects in 5 CFR Part 2608
Administrative practice and procedure, Conflict of interests,
Courts, Government employees, Penalties, Records, Subpoenas, Testimony.
Approved: May 14, 2002.
Amy L. Comstock,
Director, Office of Government Ethics.
Accordingly, for the reasons set forth in the preamble, the Office
of Government Ethics hereby adds a new part 2608 to 5 CFR chapter XVI
to read as follows:
PART 2608—TESTIMONY BY OGE EMPLOYEES RELATING TO OFFICIAL
INFORMATION AND PRODUCTION OF OFFICIAL RECORDS IN LEGAL PROCEEDINGS
Subpart A—General Provisions
Sec.
2608.101 Scope and purpose.
2608.102 Applicability.
2608.103 Definitions.
Subpart B—Requests for Testimony and Production of Documents
2608.201 General prohibition.
2608.202 Factors OGE will consider.
2608.203 Filing requirements for demands or requests for
documents or testimony.
2608.204 Service of subpoenas or requests.
2608.205 Processing demands or requests.
2608.206 Final determination.
2608.207 Restrictions that apply to testimony.
2608.208 Restrictions that apply to released records.
2608.209 Procedure when a decision is not made prior to the
time a response is required.
2608.210 Procedure in the event of an adverse ruling.
Subpart C—Schedule of Fees
2608.301 Fees.
Subpart D—Penalties
2608.401 Penalties.
Authority: 5 U.S.C. App. (Sec. 401, Ethics in Government Act of
1978); 31 U.S.C. 9701; 44 U.S.C. 3101–3107, 3301–3303a,
3308–3314.
[[Page 35711]]
Subpart A—General Provisions
§&thnsp;2608.101 Scope and purpose.
(a) This part sets forth policies and procedures you must follow
when you submit a demand or request to an employee of the Office of
Government Ethics (OGE) to produce official records and information, or
provide testimony relating to official information, in connection with
a legal proceeding. You must comply with these requirements when you
request the release or disclosure of official records and information.
(b) The Office of Government Ethics intends these provisions to:
(1) Promote economy and efficiency in its programs and operations;
(2) Minimize the possibility of involving OGE in controversial
issues not related to our functions;
(3) Maintain OGE's impartiality among private litigants where OGE
is not a named party; and
(4) Protect sensitive, confidential information and the
deliberative processes of OGE.
(c) In providing for these requirements, OGE does not waive the
sovereign immunity of the United States.
(d) This part provides guidance for the internal operations of OGE.
It does not create any right or benefit, substantive or procedural,
that a party may rely upon in any legal proceeding against the United
States.
§&thnsp;2608.102 Applicability.
This part applies to demands and requests to employees for factual
or expert testimony relating to official information, or for production
of official records or information, in legal proceedings in which OGE
is not a named party. However, it does not apply to:
(a) Demands upon or requests for an OGE employee to testify as to
facts or events that are unrelated to his or her official duties or
that are unrelated to the functions of OGE;
(b) Demands upon or requests for a former OGE employee to testify
as to matters in which the former employee was not directly or
materially involved while at the OGE;
(c) Requests for the release of records under the Freedom of
Information Act, 5 U.S.C. 552, or the Privacy Act, 5 U.S.C. 552a; and
(d) Congressional demands and requests for testimony or records.
§&thnsp;2608.103 Definitions.
The following definitions apply to this part:
Demand means a subpoena, or an order or other command of a court or
other competent authority, for the production, disclosure, or release
of records or for the appearance and testimony of an OGE employee that
is issued in a legal proceeding.
General Counsel means the General Counsel of OGE or a person to
whom the General Counsel has delegated authority under this part.
Legal proceeding means any matter before a court of law,
administrative board or tribunal, commission, administrative law judge,
hearing officer, or other body that conducts a legal or administrative
proceeding. Legal proceeding includes all phases of litigation.
OGE means the U.S. Office of Government Ethics.
OGE employee or employee means:
(1)(i) Any current or former officer or employee of OGE;
(ii) Any other individual hired through contractual agreement by or
on behalf of OGE or who has performed or is performing services under
such an agreement for OGE; and
(iii) Any individual who served or is serving in any consulting or
advisory capacity to OGE, whether formal or informal.
(2) Provided, that this definition does not include persons who are
no longer employed by OGE and who are retained or hired as expert
witnesses or who agree to testify about general matters, matters
available to the public, or matters with which they had no specific
involvement or responsibility during their employment with OGE.
Records or official records and information mean:
(1) All documents and materials which are OGE agency records under
the Freedom of Information Act, 5 U.S.C. 552;
(2) All other documents and materials contained in OGE files; and
(3) All other information or materials acquired by an OGE employee
in the performance of his or her official duties or because of his or
her official status.
Request means any informal request, by whatever method, for the
production of records and information or for testimony which has not
been ordered by a court or other competent authority.
Testimony means any written or oral statements, including
depositions, answers to interrogatories, affidavits, declarations,
interviews, and statements made by an individual in connection with a
legal proceeding.
Subpart B—Requests for Testimony and Production of Documents
§&thnsp;2608.201 General prohibition.
No employee may produce official records and information or provide
any testimony relating to official information in response to a demand
or request without the prior, written approval of the General Counsel.
§&thnsp;2608.202 Factors OGE will consider.
The General Counsel, in his or her sole discretion, may grant an
employee permission to testify on matters relating to official
information, or produce official records and information, in response
to a demand or request. Among the relevant factors that the General
Counsel may consider in making this decision are whether:
(a) The purposes of this part are met;
(b) Allowing such testimony or production of records would be
necessary to prevent a miscarriage of justice;
(c) OGE has an interest in the decision that may be rendered in the
legal proceeding;
(d) Allowing such testimony or production of records would assist
or hinder OGE in performing its statutory duties or use OGE resources
where responding to the demand or request will interfere with the
ability of OGE employees to do their work;
(e) Allowing such testimony or production of records would be in
the best interest of OGE or the United States;
(f) The records or testimony can be obtained from other sources;
(g) The demand or request is 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 or request
arose;
(h) Disclosure would violate a statute, Executive order or
regulation;
(i) Disclosure would reveal confidential, sensitive, or privileged
information, trade secrets or similar, confidential commercial or
financial information, otherwise protected information, or information
which would otherwise be inappropriate for release;
(j) Disclosure would impede or interfere with an ongoing law
enforcement investigation or proceedings, or compromise constitutional
rights;
(k) Disclosure would result in OGE appearing to favor one litigant
over another;
(l) Disclosure relates to documents that were produced by another
agency;
(m) A substantial Government interest is implicated;
(n) The demand or request is within the authority of the party
making it; and
(o) The demand or request is sufficiently specific to be answered.
[[Page 35712]]
§&thnsp;2608.203 Filing requirements for demands or requests for
documents or testimony.
You must comply with the following requirements whenever you issue
demands or requests to an OGE employee for official records and
information or testimony:
(a) Your request must be in writing and must be submitted to the
General Counsel. If you serve a subpoena on OGE or an OGE employee
before submitting a written request and receiving a final
determination, OGE will oppose the subpoena on grounds that your
request was not submitted in accordance with this subpart.
(b) Your written request must contain the following information:
(1) The caption of the legal proceeding, docket number, and name
and address of the court or other authority involved;
(2) A copy of the complaint or equivalent document setting forth
the assertions in the case and any other pleading or document necessary
to show relevance;
(3) A list of categories of records sought, a detailed description
of how the information sought is relevant to the issues in the legal
proceeding, and a specific description of the substance of the
testimony or records sought;
(4) A statement as to how the need for the information outweighs
the need to maintain any confidentiality of the information and
outweighs the burden on OGE to produce the records or provide
testimony;
(5) A statement indicating that the information sought is not
available from another source, from other persons or entities, or from
the testimony of someone other than an OGE employee, such as a retained
expert;
(6) 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;
(7) A description of all prior decisions, orders, or pending
motions in the case that bear upon the relevance of the requested
records or testimony;
(8) The name, address, and telephone number of counsel to each
party in the case; and
(9) An estimate of the amount of time that the requester and other
parties will require with each OGE employee for time spent by the
employee to prepare for testimony, in travel, and for attendance in the
legal proceeding.
(c) The Office of Government Ethics reserves the right to require
additional information to complete your request where appropriate.
(d) Your request should be submitted at least 45 days before the
date that records or testimony is required. Requests submitted in less
than 45 days before records or testimony is required must be
accompanied by a written explanation stating the reasons for the late
request and the reasons for expedited processing.
(e) Failure to cooperate in good faith to enable the General
Counsel to make an informed decision may serve as the basis for a
determination not to comply with your request.
§&thnsp;2608.204 Service of subpoenas or requests.
Subpoenas or requests for official records or information or
testimony must be served on the General Counsel, Office of Government
Ethics, Suite 500, 1201 New York Avenue, NW., Washington, DC
20005–3917.
§&thnsp;2608.205 Processing demands or requests.
(a) After service of a demand or request to testify, the General
Counsel will review the demand or request and, in accordance with the
provisions of this subpart, determine whether, or under what
conditions, to authorize the employee to testify on matters relating to
official information and/or produce official records and information.
(b) The Office of Government Ethics will process requests in the
order in which they are received. Absent exigent or unusual
circumstances, OGE will respond within 45 days from the date that we
receive it. The time for response will depend upon the scope of the
request.
(c) The General Counsel may grant a waiver of any procedure
described by this subpart where a waiver is considered necessary to
promote a significant interest of OGE or the United States or for other
good cause.
§&thnsp;2608.206 Final determination.
The General Counsel makes the final determination on demands and
requests to employees for production of official records and
information or testimony. All final determinations are within the sole
discretion of the General Counsel. The General Counsel will notify the
requester and the court or other authority of the final determination,
the reasons for the grant or denial of the demand or request, and any
conditions that the General Counsel may impose on the release of
records or information, or on the testimony of an OGE employee.
§&thnsp;2608.207 Restrictions that apply to testimony.
(a) The General Counsel may impose conditions or restrictions on
the testimony of OGE employees including, for example, limiting the
areas of testimony or requiring the requester and other parties to the
legal proceeding to agree that the transcript of the testimony will be
kept under seal or will only be used or made available in the
particular legal proceeding for which testimony was requested. The
General Counsel may also require a copy of the transcript of testimony
at the requester's expense.
(b) The Office of Government Ethics may offer the employee's
written declaration in lieu of testimony.
(c) If authorized to testify pursuant to this part, an employee may
testify as to facts within his or her personal knowledge, but, unless
specifically authorized to do so by the General Counsel, the employee
shall not:
(1) Disclose confidential or privileged information; or
(2) For a current OGE employee, testify as an expert or opinion
witness with regard to any matter arising out of the employee's
official duties or the functions of OGE unless testimony is being given
on behalf of the United States (see also §&thnsp;2635.805 of this
chapter).
§&thnsp;2608.208 Restrictions that apply to released records.
(a) The General Counsel may impose conditions or restrictions on
the release of official records and information, including the
requirement that parties to the proceeding obtain a protective order or
execute a confidentiality agreement to limit access and any further
disclosure. The terms of the protective order or of a confidentiality
agreement must be acceptable to the General Counsel. In cases where
protective orders or confidentiality agreements have already been
executed, OGE may condition the release of official records and
information on an amendment to the existing protective order or
confidentiality agreement.
(b) If the General Counsel so determines, original OGE records may
be presented for examination in response to a demand or request, but
they are not to be presented as evidence or otherwise used in a manner
by which they could lose their identity as official OGE records, nor
are they to be marked or altered. In lieu of the original records,
certified copies will be presented for evidentiary purposes (see 28
U.S.C. 1733).
§&thnsp;2608.209 Procedure when a decision is not made prior to
the time a response is required.
If a response to a demand or request is required before the General
Counsel can make the determination referred to
[[Page 35713]]
in §&thnsp;2608.201, the General Counsel, when necessary, will
provide the court or other competent authority with a copy of this
part, inform the court or other competent authority that the demand or
request is being reviewed, and seek a stay of the demand or request
pending a final determination.
§&thnsp;2608.210 Procedure in the event of an adverse ruling.
If the court or other competent authority fails to stay the demand
or request, the employee upon whom the demand or request is made,
unless otherwise advised by the General Counsel, will appear at the
stated time and place, produce a copy of this part, state that the
employee has been advised by counsel not to provide the requested
testimony or produce documents, and respectfully decline to comply with
the demand or request, citing United States ex rel. Touhy v. Ragen, 340
U.S. 462 (1951). A written response may be offered to a request, or to
a demand, if permitted by the court or other competent authority.
Subpart C—Schedule of Fees
§&thnsp;2608.301 Fees.
(a) Generally. The General Counsel may condition the production of
records or appearance for testimony upon advance payment of a
reasonable estimate of the costs to OGE.
(b) Fees for records. Fees for producing records will include fees
for searching, reviewing, and duplicating records, costs of attorney
time spent in reviewing the demand or request, and expenses generated
by materials and equipment used to search for, produce, and copy the
responsive information. Costs for employee time will be calculated on
the basis of the hourly pay of the employee (including all pay,
allowance, and benefits). Fees for duplication will be the same as
those charged by OGE in its Freedom of Information Act and Ethics in
Government Act fee regulations at 5 CFR part 2604, subparts E and G.
(c) Witness fees. Fees for attendance by a witness will include
fees, expenses, and allowances prescribed by the court's rules. If no
such fees are prescribed, witness fees will be determined based upon
the rule of the Federal district court closest to the location where
the witness will appear. Such fees will include cost of time spent by
the witness to prepare for testimony, in travel, and for attendance in
the legal proceeding.
(d) Payment of fees. You must pay witness fees for current OGE
employees and any records certification fees by submitting to the
General Counsel a check or money order for the appropriate amount made
payable to the Treasury of the United States. In the case of testimony
by former OGE employees, you must pay applicable fees directly to the
former employee in accordance with 28 U.S.C. 1821 or other applicable
statutes.
(e) Certification (authentication) of copies of records. The Office
of Government Ethics may certify that records are true copies in order
to facilitate their use as evidence. If you seek certification, you
must request certified copies from OGE at least 45 days before the date
they will be needed. The request should be sent to the General Counsel.
You will be charged a certification fee of $15.00 for each document
certified.
(f) Waiver or reduction of fees. The General Counsel, in his or her
sole discretion, may, upon a showing of reasonable cause, waive or
reduce any fees in connection with the testimony, production, or
certification of records.
(g) De minimis fees. Fees will not be assessed if the total charge
would be $10.00 or less.
Subpart D—Penalties
§&thnsp;2608.401 Penalties.
(a) An employee who discloses official records or information or
gives testimony relating to official information, except as expressly
authorized by OGE or as ordered by a Federal court after OGE has had
the opportunity to be heard, may face the penalties provided in 18
U.S.C. 641 and other applicable laws. Additionally, former OGE
employees are subject to the restrictions and penalties of 18 U.S.C.
207 and 216.
(b) A current OGE employee who testifies or produces official
records and information in violation of this part shall be subject to
disciplinary action.
[FR Doc. 02–12552 Filed 5–20–02; 8:45 am]
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