[Federal Register Volume 60, Number 108 (Tuesday, June 6, 1995)]
[Proposed Rules]
[Pages 29806-29809]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-13252]



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POSTAL SERVICE

39 CFR Part 265


Compliance With Subpoenas, Summonses, and Court Orders by Postal 
Employees Within the Inspection Service Where the Postal Service or the 
United States Is Not a Party

AGENCY: Postal Service.

ACTION: Proposed rule.

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SUMMARY: The Postal Service proposes to establish procedures for Postal 
Service employees within the Postal Inspection Service to respond to 
subpoenas, summonses, and court orders to produce records or give 
testimony in cases where the Postal Service is not a party. The purpose 
of this proposed rule is to minimize disruption of normal Postal 
Inspection Service functions caused by compliance with those demands, 
maintain control over release of public information, prevent the 
disclosure of information that should not legally be disclosed, prevent 
the Postal Service from being misused for private purposes, and 
otherwise protect the interests of the United States. These procedures 
would prohibit postal employees within or assigned to the Postal 
Inspection Service from complying with subpoenas, summonses, and other 
court orders in cases where the Postal Service is not a party unless 
authorized by certain authorizing officials.

DATES: Comments must be submitted on or before July 6, 1995. Comments 
will be available for public inspection until July 21, 1995.

ADDRESSES: Written comments should be mailed or delivered to James M. 
Parrott, Associate Counsel, Postal Inspection Service, United States 
Postal Service, 475 L'Enfant Plaza SW, Room 3411, Washington, DC 20260-
2181.
    Comments may be delivered to room 3411 at the above address between 
8:15 a.m. and 4:45 p.m., Monday through Friday. Copies of all written 
comments will be available for inspection and photocopying during these 
hours in room 3411.

FOR FURTHER INFORMATION CONTACT: James M. Parrott, Associate Counsel, 
Office of the Chief Postal Inspector, (202) 268-4417.

SUPPLEMENTARY INFORMATION: The proposed rule provides that postal 
employees within or assigned to the Postal Inspection Service must 
follow certain rules for the release of information in the form of 
documents or testimony. Giving testimony or releasing a document in 
legal proceedings where the Postal Service or the United States is not 
a party must be authorized beforehand. Employees within or assigned to 
the Inspection Service may comply with subpoenas, summonses, and court 
orders where the Postal Service or the United States is not a party, 
with the authorization of specified authorizing officials after 
consulting Inspection Service legal counsel. The release of the 
information must be in compliance with applicable laws and regulations 
and not be against the interests of the United States.
    Several federal agencies have enacted regulations that give them 
the authority to control the release of documents and testimony in 
legal proceedings where the agency is not a party. Courts have 
recognized that federal agencies may limit compliance in these 
situations. See United States ex rel. Touhy v. Ragen, 340 U.S. 462 
(1951). Additionally, subpoenas, summonses, and orders issued by state 
courts, legislatures, or legislative committees that attempt to assert 
jurisdiction over federal agencies are inconsistent with the Supremacy 
Clause of the U.S. Constitution. A federal regulation regarding 
compliance with those subpoenas reinforces this principle. McCulloch v. 
Maryland, 17 U.S. (4 Wheat.) 316 (1819); United States v. McLeod, 385 
F.2d 734 (5th Cir. 1967).
    This proposed rule does not apply to situations in which the United 
States, the Postal Service, or any federal agency is a party in action; 
Congressional requests, summonses, or subpoenas; consultative services 
and technical assistance rendered by the Inspection Service in the 
course of its normal functions; employees serving as expert witnesses; 
employees making appearances in their private capacity; and when it has 
been determined by an authorizing official that it is in the public 
interest.
    Proposed new Sec. 265.13 of title 39 of the Code of Federal 
Regulations will be the Postal Service regulation concerning the 
compliance with subpoenas, summonses, and court orders by postal 
employees within the Inspection Service where the Postal Service or the 
United States is not a party. This section has also been written to 
reflect the changes in organization that the Inspection Service has 
undergone. As an example, the position of Regional Chief Inspector no 
longer exists within the Inspection Service. Current regulations 
identify that official as responsible for authorizing testimony or the 
production of documents pursuant to a subpoena, summons, or court order 
where the Postal Service, the United States, or another federal agency 
is not a party. Now, the authorizing official, in most cases, is the 
Postal Inspector in Charge of the affected field Division.

List of Subjects in 39 CFR Part 265

    Administrative practice and procedure, Government employees, 
Release of information.

    Accordingly, 39 CFR part 265 is proposed to be amended as set forth 
below.

PART 265--RELEASE OF INFORMATION

    1. The authority citation for part 265 continues to read as 
follows:

    Authority: 39 U.S.C. 401; 5 U.S.C. 552; Inspector General Act of 
1978, as amended (Pub. L. 95-452, as amended), 5 U.S.C.   App. 3.

    2. The heading of Sec. 265.11 is revised to read as follows:


Sec. 265.11  Compliance with subpoena duces tecum, court orders, and 
summonses.
    3. Paragraphs (b) and (c) of Sec. 265.11 are removed and paragraph 
(b) is reserved. A new Sec. 265.13 is added to read as follows:


Sec. 265.13  Compliance with subpoenas, summonses, and court orders by 
postal employees within the Inspection Service where the Postal 
Service, the United States, or any other federal agency is not a party.

    (a) Applicability of this section. These rules apply to all 
federal, state, and local court proceedings, as well as administrative 
and legislative proceedings, other than:
    (1) Proceedings where the United States, the Postal Service, or any 
other federal agency is a party;
    (2) Congressional requests or subpoenas for testimony or documents;
    (3) Consultative services and technical assistance rendered by the 
Inspection Service in executing its normal functions;
    (4) Employees serving as expert witnesses in connection with 
professional and consultative services under Sec. 447.23 of this 
chapter and under title 5, Code of Federal Regulations, part 7001, 
provided that employees acting in this capacity must state for the 
record that their testimony reflects their personal opinions and should 
not be viewed as the official position of the Postal Service; 
[[Page 29807]] 
    (5) Employees making appearances in their private capacities in 
proceedings that do not relate to the Postal Service (e.g., cases 
arising from traffic accidents, domestic relations) and do not involve 
professional or consultative services; and
    (6) When in the opinion of the Counsel or the Counsel's designee, 
Office of the Chief Postal Inspector, it has been determined that it is 
in the best interest of the Inspection Service or in the public 
interest.
    (b) Purpose and scope. These provisions limit the participation of 
postal employees within or assigned to the Inspection Service, in 
private litigation, and other proceedings in which the Postal Service, 
the United States, or any other federal agency is not a party. The 
rules are intended to promote the careful supervision of Inspection 
Service resources and to reduce the risk of inappropriate disclosures 
that might affect postal operations.
    (c) Definitions. For the purposes of this section:
    (1) Authorizing official is the person responsible for giving the 
authorization for release of documents or permission to testify.
    (2) Case or matter means any civil proceeding before a court of 
law, administrative board, hearing officer, or other body conducting a 
judicial or administrative proceeding in which the United States, the 
Postal Service, or another federal agency is not a named party.
    (3) Demand includes any request, order, or subpoena for testimony 
or the production of documents.
    (4) Document means all records, papers, or official files, 
including, but not limited to, official letters, telegrams, memoranda, 
reports, studies, calendar and diary entries, graphs, notes, charts, 
tabulations, data analyses, statistical or information accumulations, 
records of meetings and conversations, film impressions, magnetic 
tapes, computer discs, and sound or mechanical reproductions;
    (5) Employee or Inspection Service employee, for the purpose of 
this regulation only, refers to a Postal Service employee currently or 
formerly assigned to the Postal Inspection Service, student interns, 
contractors and employees of contractors who have access to Inspection 
Service information and records.
    (6) Inspection Service means the organizational unit within the 
Postal Service as outlined in Sec. 224.3 of this chapter.
    (7) Inspection Service Legal Counsel is an attorney authorized by 
the Chief Postal Inspector to give legal advice to members of the 
Inspection Service.
    (8) Inspection Service Manual is the directive containing the 
standard operating procedures for Postal Inspectors and certain 
Inspection Service employees.
    (9) Nonpublic includes any material or information not subject to 
mandatory public disclosure under Sec. 265.6(b).
    (10) Official case file means official documents that relate to a 
particular case or investigation. These documents may be kept at any 
location and do not necessarily have to be in the same location in 
order to constitute the file.
    (11) Postal Inspector reports include all written reports, letters, 
recordings, or other memorializations made in conjunction with the 
duties of a Postal Inspector.
    (12) Testify or testimony includes both in-person oral statements 
before any body conducting a judicial or administrative proceeding and 
statements made in depositions, answers to interrogatories, 
declarations, affidavits, or other similar documents.
    (13) Third-party action means an action, judicial or 
administrative, in which the United States, the Postal Service, or any 
other federal agency is not a named party.
    (d) Policy. No current or former employee within the Inspection 
Service may testify or produce documents concerning information 
acquired in the course of employment or as a result of his or her 
relationship with the Postal Service in any proceeding to which this 
subsection applies (see paragraph (a) of this section), unless 
authorized to do so. Authorization will be provided by:
    (1) The Postal Inspector in Charge of the affected field Division, 
or designee, for Division personnel and records, after that official 
has determined through consultation with Inspection Service legal 
counsel that no legal objection, privilege, or exemption applies to 
such testimony or production of documents.
    (2) The Chief Postal Inspector or designee for Headquarters 
employees and records, after that official has determined through 
consultation with Inspection Service legal counsel, that no legal 
objection, privilege, or exemption applies to such testimony or 
production of documents.
    (3) Consideration shall be given to:
    (i) Statutory restrictions, as well as any legal objection, 
exemption, or privilege that may apply;
    (ii) Relevant legal standards for disclosure of nonpublic 
information and documents;
    (iii) Inspection Service rules and regulations and the public 
interest;
    (iv) Conservation of employee time; and
    (v) Prevention of the expenditure of Postal Service resources for 
private purposes.
    (4) If additional information is necessary before a determination 
can be made, the authorizing official may, in coordination with 
Inspection Service legal counsel, request assistance from the 
Department of Justice.
    (e) Compliance with subpoena duces tecum. (1) Except as required by 
part 262 of this chapter, produce any other record of the Postal 
Service only in compliance with a subpoena duces tecum or appropriate 
court order.
    (2) Do not release any record containing information relating to an 
employee's security or loyalty.
    (3) Honor subpoenas and court orders only when disclosure is 
authorized.
    (4) When authorized to comply with a subpoena duces tecum or court 
order, do not leave the originals with the court.
    (5) Postal Inspector reports are considered to be confidential 
internal documents and shall not be released unless there is specific 
authorization by the Chief Postal Inspector or the Inspector in Charge 
of the affected field Division, after consulting with Inspection 
Service legal counsel.
    (6) The Inspection Service Manual and other operating instructions 
issued to Inspection Service employees are considered to be 
confidential and shall not be released unless there is specific 
authorization, after consultation with Inspection Service legal 
counsel. If the requested information relates to confidential 
investigative techniques, or release of the information would adversely 
affect the law enforcement mission of the Inspection Service, the 
subpoenaed official, through Inspection Service legal counsel, may 
request an in camera, ex parte conference to determine the necessity 
for the release of the information. The entire Manual should not be 
given to any party.
    (7) Notes, memoranda, reports, transcriptions, whether written or 
recorded and made pursuant to an official investigation conducted by a 
member of the Inspection Service, are the property of the Inspection 
Service and are part of the official case file, whether stored with the 
official file.
    (f) Compliance with summonses and subpoenas ad testificandum. (1) 
If an Inspection Service employee is served with a third-party summons 
or a subpoena requiring an appearance in court, contact should be made 
with Inspection Service legal counsel to determine whether and which 
exemptions or restrictions apply to proposed testimony. Inspection 
Service [[Page 29808]] employees are directed to comply with summonses, 
subpoenas, and court orders, as to appearance, but may not testify 
without authorization.
    (2) Postal Inspector reports or records will not be presented 
during testimony, in either state or federal courts in which the United 
States, the Postal Service, or another federal agency is not a party in 
interest, unless authorized by the Chief Postal Inspector or the Postal 
Inspector in Charge of the affected field Division, who will make the 
decision after consulting with Inspection Service legal counsel. If an 
attempt is made to compel production, through testimony, the employee 
is directed to decline to produce the information or matter and to 
state that it may be exempted and may not be disclosed or produced 
without the specific approval of the Chief Postal Inspector or the 
Postal Inspector in Charge of the affected field Division. The Postal 
Service will offer all possible assistance to the courts, but the 
question of disclosing information for which an exemption may be 
claimed is a matter of discretion that rests with the appropriate 
official. Paragraph (e) of this section covers the release of 
Inspection Service documents in cases where the Postal Service or the 
United States is not a party.
    (g) General procedures for obtaining Inspection Service documents 
and testimony from Inspection Service employees. (1) To facilitate the 
orderly response to demands for the testimony of Inspection Service 
employees and production of documents in cases where the United States, 
the Postal Service, or another federal agency is not a party, all 
demands for the production of nonpublic documents or testimony of 
Inspection Service employees concerning matters relating to their 
official duties and not subject to the exemptions set forth in 
paragraph (a) of this section shall be in writing and conform to the 
requirements outlined in paragraphs (g)(2) and (g)(3) of this section.
    (2) Before or simultaneously with service of a demand described in 
paragraph (g)(1) of this section, the requesting party shall serve on 
the Counsel, Office of the Chief Postal Inspector, 475 L'Enfant Plaza 
SW, Washington, DC 20260-2181, an affidavit or declaration containing 
the following information:
    (i) The title of the case and the forum where it will be heard;
    (ii) The party's interest in the case;
    (iii) The reasons for the demand;
    (iv) A showing that the requested information is available, by law, 
to a party outside the Postal Service;
    (v) If testimony is sought, a summary of the anticipated testimony;
    (vi) If testimony is sought, a showing that Inspection Service 
records could not be provided and used in place of the requested 
testimony;
    (vii) The intended use of the documents or testimony; and
    (viii) An affirmative statement that the documents or testimony is 
necessary for defending or prosecuting the case at issue.
    (3) The Counsel, Office of the Chief Postal Inspector, shall act as 
agent for the receipt of legal process for demands for production of 
records or testimony of Inspection Service employees where the United 
States, the Postal Service, or any other federal agency is not a party. 
A subpoena for testimony or for the production of documents from an 
Inspection Service employee concerning official matters shall be served 
in accordance with the applicable rules of civil procedure. A copy of 
the subpoena and affidavit or declaration, if not previously furnished, 
shall also be sent to the Chief Postal Inspector or the appropriate 
Postal Inspector in Charge.
    (4) Any Inspection Service employee who is served with a demand 
shall promptly inform the Chief Postal Inspector, or the appropriate 
Postal Inspector in Charge, of the nature of the documents or testimony 
sought and all relevant facts and circumstances.
    (h) Authorization of testimony or production of documents. (1) The 
Chief Postal Inspector or the Postal Inspector in Charge of the 
affected field Division, after consulting with Inspection Service legal 
counsel, shall determine whether testimony or the production of 
documents will be authorized.
    (2) Before authorizing the requested testimony or the production of 
documents, the Chief Postal Inspector or the Postal Inspector in Charge 
of the affected field Division shall consider the following factors:
    (i) Statutory restrictions, as well as any legal objection, 
exemption, or privilege that may apply;
    (ii) Relevant legal standards for disclosure of nonpublic 
information and documents;
    (iii) Inspection Service rules and regulations and the public 
interest;
    (iv) Conservation of employee time; and
    (v) Prevention of expenditures of government time and resources 
solely for private purposes.
    (3) If, in the opinion of the authorizing official, the documents 
should not be released or testimony should not be furnished, that 
official's decision is final.
    (4) Inspection Service legal counsel may consult or negotiate with 
the party or the party's counsel seeking testimony or documents to 
refine and limit the demand, so that compliance is less burdensome, or 
obtain information necessary to make the determination whether the 
documents or testimony will be authorized. If the party or party's 
counsel seeking the documents or testimony fails to cooperate in good 
faith, preventing Inspection Service legal counsel from making an 
informed recommendation to the authorizing official, that failure may 
be presented to the court or other body conducting the proceeding as a 
basis for objection.
    (5) Permission to testify or to release documents in all cases will 
be limited to matters outlined in the affidavit or declaration 
described in paragraph (g)(2) of this section or to such parts as 
deemed appropriate by the authorizing official.
    (6) If the authorizing official allows the release of documents or 
testimony to be given by an employee, arrangements shall be made for 
the taking of testimony or receipt of documents by the least disruptive 
methods to the employee's official duties. Testimony may, for example, 
be provided by affidavits, answers to interrogatories, written 
depositions, or depositions transcribed, recorded, or preserved by any 
other means allowable by law.
    (i) While giving a deposition, the employee may, at the option of 
the authorizing official, be represented by Inspection Service legal 
counsel.
    (ii) While completing affidavits, or other written reports or at 
any time during the process of preparing for testimony or releasing 
documents, the employee may seek the assistance of Inspection Service 
legal counsel.
    (7) Absent written authorization from the authorizing official, the 
employee shall respectfully decline to produce the requested documents, 
testify, or, otherwise, disclose the requested information.
    (8) If the authorization is denied or not received by the return 
date, the employee, together with counsel, where appropriate, shall 
appear at the stated time and place, produce a copy of this section, 
and respectfully decline to testify or produce any document on the 
basis of these regulations.
    (9) The employee shall appear as ordered by the subpoena, summons, 
or other appropriate court order, unless:
    (i) Legal counsel has advised the employee that an appearance is 
inappropriate, as in cases where the subpoena, summons, or other court 
order was not properly issued or served, [[Page 29809]] has been 
withdrawn, discovery has been stayed; or
    (ii) Where the Postal Service will present a legal objection to 
furnishing the requested information or testimony.
    (i) Inspection Service employees as expert or opinion witnesses. No 
Inspection Service employee may testify as an expert or opinion 
witness, with regard to any matter arising out of the employee's duties 
or functions at the Postal Service, for any party other than the United 
States, except that in extraordinary circumstances, the Counsel, Office 
of the Chief Postal Inspector, may approve such testimony in private 
litigation. An Inspection Service employee may not testify as such an 
expert or opinion witness without the express authorization of the 
Counsel, Office of the Chief Postal Inspector. A litigant must first 
obtain authorization of the Counsel, Office of the Chief Postal 
Inspector, before designating an Inspection Service employee as an 
expert or opinion witness.
    (j) Postal liability. This section is intended to provide 
instructions to Inspection Service employees and does not create any 
right or benefit, substantive or procedural, enforceable by any party 
against the Postal Service.
    (k) Fees. (1) Unless determined by 28 U.S.C. 1821 or other 
applicable statute, the costs of providing testimony, including 
transcripts, shall be borne by the requesting party.
    (2) Unless limited by statute, such costs shall also include 
reimbursement to the Postal Service for the usual and ordinary expenses 
attendant upon the employee's absence from his or her official duties 
in connection with the case or matter, including the employee's salary 
and applicable overhead charges, and any necessary travel expenses as 
follows:
    (i) The Inspection Service is authorized to charge reasonable fees 
to parties demanding documents or information. Such fees, calculated to 
reimburse the Postal Service for the cost of responding to a demand, 
may include the costs of time expended by Inspection Service employees, 
including attorneys, to process and respond to the demand; attorney 
time for reviewing the demand and for legal work in connection with the 
demand; expenses generated by equipment used to search for, produce, 
and copy the requested information; travel costs of the employee and 
the agency attorney, including lodging and per diem where appropriate. 
Such fees shall be assessed at the rates and in the manner specified in 
Sec. 265.9.
    (ii) At the discretion of the Inspection Service where appropriate, 
fees and costs may be estimated and collected before testimony is 
given.
    (iii) These provisions do not affect rights and procedures 
governing public access to official documents pursuant to the Freedom 
of Information Act, 5 U.S.C 552a.
    (k) Acceptance of Service. These rules in no way modify the 
requirements of the Federal Rules of Civil Procedure (28 U.S.C. 
Appendix) regarding service of process.
Stanley F. Mires,
Chief Counsel, Legislative.
[FR Doc. 95-13252 Filed 6-5-95; 8:45 am]
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