[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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