[Federal Register Volume 77, Number 52 (Friday, March 16, 2012)]
[Rules and Regulations]
[Pages 15561-15564]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-6306]
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SPECIAL INSPECTOR GENERAL FOR AFGHANISTAN RECONSTRUCTION
5 Part 9302
RIN 3460-AA02
Requests for Testimony or the Production of Records in a Court or
Other Proceedings in Which the United States Is Not a Party
AGENCY: Special Inspector General for Afghanistan Reconstruction.
ACTION: Interim final rule.
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SUMMARY: This interim final rule establishes procedures for the public
to obtain the production or disclosure of information and documents of
Special Inspector General for Afghanistan Reconstruction (SIGAR) in
connection with legal proceedings in which neither the United States
nor the SIGAR is a party. It sets forth the procedures used when
determining whether SIGAR employees will be permitted to testify or
provide records relating to their official duties when they are
subpoenaed or otherwise requested to testify. The rule also specifies
the criteria that SIGAR officials are to use when deciding whether to
allow an employee to testify or provide records.
DATES: This interim final rule is effective March 16, 2012. Written
comments may be submitted by April 16, 2012.
ADDRESSES: Submit written comments to Hugo Teufel, Acting General
Counsel, email: hugo.teufel.civ@mail.mil, Special Inspector General for
Afghanistan Reconstruction, Arlington, Virginia.
FOR FURTHER INFORMATION CONTACT: Hugo Teufel, Acting General Counsel,
at (703) 703-545-5990, email: hugo.teufel.civ@mail.mil.
SUPPLEMENTARY INFORMATION:
I. Background
On January 28, 2008, the President signed into law the National
Defense Authorization Act for Fiscal Year 2008 (Pub. L. 110-181), which
created the Special Inspector General for Afghanistan Reconstruction
(SIGAR). 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 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.
SIGAR's proposed Touhy regulations provide generally that employees
of SIGAR may not disclose documents or information in response to a
demand or order of a court or any other authority without first being
authorized by the agency to do so. The purpose of these regulations is
to conserve valuable agency resources, protect SIGAR employees from
becoming enmeshed in litigation, and to protect sensitive Government
information and decision making processes within the confines of the
law. In order to establish procedures to facilitate public interaction
with SIGAR, SIGAR is issuing proposed and interim final regulations.
II. The Interim Final Rule
This interim final rule establishes procedures governing the
disclosure of information and records in connection with court
litigation and certain other types of proceedings.
III. Procedural Requirements
This interim final rule is generally similar to the Touhy
procedures concerning the disclosure of information in litigation that
have been adopted by other agencies. Further, this rule relates to
agency management and personnel. Accordingly, SIGAR has determined that
notice and public procedure thereon are impracticable, unnecessary and
contrary to the public interest pursuant to 5 U.S.C. 553(b)(3)(B). For
the same reasons, SIGAR has determined that this interim rule should be
issued without a delayed effective date pursuant to 5 U.S.C.
[[Page 15562]]
553(d)(3). Nevertheless, SIGAR will consider any public comments on
this interim final rule before issuing its final rule.
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 5 CFR Part 9302
Courts, Government employees, Freedom of information, Government
employees.
Authority and Issuance
0
For the reasons set forth above, 5 CFR chapter LXXXIII is amended to
add part 9302 to read as follows:
PART 9302--REQUESTS FOR TESTIMONY OR THE PRODUCTION OF RECORDS IN A
COURT OR OTHER PROCEEDINGS IN WHICH THE UNITED STATES IS NOT A
PARTY
Authority: Pub. L. 110-181 (Jan. 28, 2008), Section 1229 (122
Stat. 378-85), as amended, and Section 842 (122 Stat. 234-36), 10
U.S.C. 2302 note; and 5 U.S.C. 301.
Sec. 9302.1 SIGAR Touhy regulations.
(a) Applicability. (1) This section sets forth the policies and
procedures of the Special Inspector General for Afghanistan
Reconstruction (SIGAR or the agency) regarding the testimony of
employees and former employees as witnesses and the production or
disclosure of SIGAR documents or information for use in legal
proceedings in which the United States is not a party and where the
demand is pursuant to a subpoena, order or request (collectively
referred to in this section 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 SIGAR.
(3)(i) Nothing in this section affects the rights and procedures
governing public access to agency 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 in which the United States is not
a party for the production of SIGAR records or information, or for the
testimony of SIGAR employees, regarding information or documents that
are protected by the Privacy Act (5 U.S.C. 552a), the Trade Secrets Act
(18 U.S.C. 1905) or other 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 to provide guidance for the internal
operations of SIGAR and to inform the public about SIGAR procedures
concerning service of process upon SIGAR and its responses to demands.
The procedures specified in this section, or the failure of any SIGAR
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:
Agency counsel means: SIGAR's General Counsel or his or her
designee.
Demand means a subpoena, order or request for testimony, documents
or information related to, or for possible use in, a legal proceeding
in which the United States is not a party.
Document means any record or other property, no matter what media,
and including copies thereof, held by SIGAR, including without
limitation, letters, Emails, telegrams, memoranda, facsimiles, reports,
studies, calendar and diary entries, maps, graphs, pamphlets, notes,
charts, tabulations, analyses, statistical or informational
accumulations, summaries of meetings and conversations, film
impressions, magnetic tapes and sound or mechanical reproductions.
Employee means all employees or officers of SIGAR, including (for
the purpose of this section only) contractors and any other individuals
who have been appointed by, or are subject to the supervision,
jurisdiction or control of SIGAR. The procedures established within
this subpart also apply to former employees of SIGAR where specifically
stated in this section.
General Counsel means the General Counsel of SIGAR.
Legal proceeding means all pretrial, trial and post-trial stages of
all judicial or administrative actions, hearings, investigations,
arbitrations or similar proceedings before courts, commissions, boards,
grand juries, or other tribunals, foreign or domestic. This term
includes all phases of discovery as well as responses to informal
requests by attorneys or others involved in legal proceedings seeking
interviews or the like.
Official business means the authorized business of SIGAR as stated
in the ``National Defense Authorization Act for Fiscal Year 2008,''
Pub. L. 110-181 (Jan. 28, 2008), Section 1229 (122 Stat. 378-85), as
amended, and Section 842 (122 Stat. 234-36), 10 U.S.C. 2302 note.
Testimony means an employee's statement in any form, including
testifying before a court or other tribunal or board, giving
depositions, interviews, telephonic, televised, videoconference or
videotaped statements, and providing written responses to
interrogatories, admission requests or other discovery.
(c) SIGAR policy. (1) SIGAR was established by Section 1229 of the
National Defense Authorization Act for Fiscal Year 2008, Public Law
110-181 (January 28, 2008), as a wartime or overseas contingency
operation oversight agency of the United States Government's Executive
Branch. SIGAR's Inspector General is appointed by the President of the
United States. See Pub. L. 110-181, Section 1229(c). SIGAR performs
oversight of Afghanistan reconstruction and security programs,
operations and contracts to prevent and detect waste, fraud and abuse
pursuant to Sections 1229 and 842 of Public Law 110-181. The records of
an inspector general frequently contain sensitive law enforcement
information that is protected from disclosure or obtained under
guarantees of confidentiality.
(2) In appropriate cases, the agency counsel shall notify the
United States Department of Justice (DOJ) of the demand and coordinate
with the DOJ to file any appropriate motions or other pleadings.
(3) No current or former employee shall, in response to a demand,
produce any SIGAR documents, provide testimony regarding any
information relating to or based upon SIGAR documents, or disclose any
information or produce materials acquired as part of the performance of
that employee's official duties or official status, in a legal
proceeding in which the United States is not a party, without the prior
written authorization of the General Counsel. See United States ex rel.
Touhy v. Ragen, 340 U.S. 462 (1951); and 5 U.S.C. 301 (``The head of an
Executive department or military department may prescribe regulations
for the government of his department, the conduct of its employees, the
distribution and performance of its business, and the custody, use, and
preservation of its records, papers, and property. This section does
not authorize withholding information from the public or limiting the
availability of records to the public.'')
[[Page 15563]]
(d) Procedures for demand for testimony or production of documents.
(1) A written demand directed to SIGAR for the testimony of a SIGAR
employee or for the production of documents shall be served in
accordance with the requirements of the Federal Rules of Civil
Procedure, Federal Rules of Criminal Procedure, or applicable state
procedures, as appropriate. If the demand is served by the U.S. mails,
it should be addressed to the General Counsel, Special Inspector
General for Afghanistan Reconstruction, 2530 Crystal Drive, Arlington,
VA 22202-3940. If the demand is served by overnight delivery service or
courier, it should be directed to the General Counsel, Special
Inspector General for Afghanistan Reconstruction, 2530 Crystal Drive,
Arlington, VA 22202-3940. SIGAR's acceptance of a demand shall not
constitute an admission or waiver of any objection with respect to the
propriety of jurisdiction, service of process, venue, or any other
defense in law or equity available under applicable law.
(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 or demand shall be delivered to
the General Counsel.
(3)(i) Touhy Request. In court cases in which the United States or
SIGAR is not a party, where the giving of testimony or the production
of documents by SIGAR, or a current or former employee is desired, a
verified statement (declaration under penalty of perjury) by the
litigant or his counsel, setting forth the information with respect to
which the testimony or production is desired (``Touhy Request''), must
be submitted in order to obtain a decision concerning whether such
testimony or production will be authorized by SIGAR. The Touhy Request
should include: the title of the legal proceeding, the court or other
forum, the requesting party's interest in the legal proceeding, a
statement whether other evidence reasonably suited to the requester's
needs is not otherwise available, and, if testimony is requested, the
subject matter and intended use of the testimony, a statement whether
document(s) could be provided in lieu of testimony to satisfy the
request, and a statement that the requester will submit a check for
costs of duplication at commercially reasonable rates to SIGAR if the
request is granted. The purpose of these requirements is to assist the
General Counsel in making a fair and informed decision under governing
law regarding whether testimony or the production of document should be
authorized and under what conditions, if any. Permission to testify or
produce documents will be limited to the areas of proposed testimony
described in the Touhy Request.
(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 to obtain
information necessary to make the determination required by paragraph
(e) of this section. Failure of the requester to cooperate in good
faith to enable the General Counsel to make an informed determination
under this subpart may serve as a basis for denying the Touhy Request.
(iii) A determination under this section to comply or not to comply
with the Touhy Request is without prejudice to the agency's assertion
of privilege, lack of relevance, technical deficiency, or any other
objection to the demand.
(4)(i) Employees shall immediately refer all inquiries and demands
made to SIGAR or its employees to the General Counsel.
(ii) An employee who receives a demand shall forward the demand to
the General Counsel, who will determine the agency's response to the
demand under this section.
(e) Factors to be considered by the General Counsel with respect to
a Touhy Request. (1) In deciding whether to authorize the release of
official information or the testimony of SIGAR personnel concerning
official information (hereafter referred to as the ``disclosure''), the
General Counsel shall consider the following factors:
(i) Whether the demand is unduly burdensome to the agency or
otherwise inappropriate under the applicable rules of discovery,
evidence and procedure governing the litigation in which the demand
arose, balanced against the need for the specific testimony or
documents sought;
(ii) Whether the demand is appropriate under the relevant
substantive law of privilege and disclosure of Government information,
or seeks information or documents protected from disclosure under the
Freedom of Information Act, 5 U.S.C. 552(b), the Privacy Act, 5 U.S.C.
552a, or the Inspector General Act of 1978, as amended, 5 U.S.C. App.;
(iii) Whether the demand would interfere with SIGAR's statutory
mandate stated in the ``National Defense Authorization Act for Fiscal
Year 2008,'' Pub. L. 110-181 (Jan. 28, 2008), Section 1229 (122 Stat.
378-85), as amended; Pub. L. 110-181, Section 842 (122 Stat. 234-36),
10 U.S.C. 2302 note; or the Inspector General Act of 1978, as amended,
5 U.S.C. App.;
(iv) Whether the demand would be in the public interest;
(v) The extent to which the time of employees for conducting
official agency business would be compromised;
(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 scope; and
(vii) Whether other similar requests are likely to have a
deleterious cumulative effect on the expenditure of agency time and
resources.
(2) Among those demands and requests in response to which
compliance will ordinarily not be authorized are those with respect to
which any of the following factors exists:
(i) The requested disclosure elicits information or documents
protected by a statute, Executive Order or regulation, including but
not limited to Section 7(b) of the Inspector General Act of 1978, as
amended, 5 U.S.C. App. 3, section 7(b), or other prohibition from
disclosure;
(ii) The requested disclosure would interfere with ongoing
enforcement proceedings, compromise constitutional rights, reveal the
identity of an intelligence source, confidential informant or
undercover agent, or disclose trade secrets or similar confidential
commercial or financial information.
(iii) The integrity of the administrative and deliberative
processes of SIGAR would be jeopardized;
(iv) The requested disclosure would not be appropriate under the
rules of procedure governing the pending litigation or matter in which
the demand arose;
(v) The requested disclosure is not appropriate under the relevant
substantive law concerning privilege; or
(vi) The requested disclosure, except when production is in camera,
would reveal information properly classified or other matters exempt
from unrestricted disclosure.
(3) All decisions granting or denying a Touhy Request must be in
writing and, if a denial, provide the grounds for the decision in
summary form based on one or more of the factors listed above.
(f) Requests for opinion or expert testimony. (1) Pursuant to 5 CFR
2635.805, an employee shall not provide, with or without compensation,
opinion or expert testimony in any
[[Page 15564]]
proceeding before a court or agency of the United States in which the
United States is a party or has a direct and substantial interest,
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, the General Counsel may, in writing, grant authorization
for an employee, or former employee, to appear and testify.
(3) Any expert or opinion testimony by a former employee of SIGAR
shall be excepted from the restriction under 5 CFR 2635.805 where the
testimony involves only general expertise gained while employed at
SIGAR.
(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 requesting party who submitted the
demand.
(2) If, despite the determination of the agency counsel that
testimony should not be given or documents not be produced, a court of
competent jurisdiction or other tribunal orders the employee or former
employee to testify and/or produce documents, the employee shall
promptly notify the General Counsel of such Order.
(i) If agency counsel determines that no further legal review of,
appeal from, or challenge to, the Order will be sought, agency counsel
shall promptly inform the employee or former employee of said
determination.
(ii) If SIGAR determines to challenge an Order directing testimony
or the production of documents in litigation in which the United States
is not a party, the employee should not comply with the Order. The
employee should appear at the time and place as commanded in the order
or subpoena. If legal counsel cannot appear on behalf of the employee,
the employee should produce a copy of this section and respectfully
inform the Court or other legal tribunal that he/she has been advised
by the General Counsel not to provide the requested testimony or
documents pursuant to the decision of the United States Supreme Court
in United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951), and this
section. Agency counsel will coordinate with the DOJ to file such
motions or other pleadings that may be deemed appropriate in the
circumstances, such as, for example, a notice to remove the case from
state court to Federal court, or a motion to quash or modify the
subpoena, or a motion for a protective order.
(h) Fees. In the event that a Touhy Request is granted, SIGAR may
charge reasonable fees to parties seeking official information or
records. Such fees are calculated to reimburse the Government for the
expense of providing such information or records, and may include the
costs of time expended by SIGAR employees to process and respond to the
request; attorney time for reviewing the request and any responsive
records and for related legal work in connection with the request; and
reasonable expenses generated by materials and equipment used to search
for, produce, and copy the responsive information or records.
Dated: March 12, 2012.
Steven J Trent,
Acting Inspector General, Special Inspector General for Afghanistan
Reconstruction.
[FR Doc. 2012-6306 Filed 3-15-12; 8:45 am]
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