[Federal Register Volume 64, Number 33 (Friday, February 19, 1999)]
[Rules and Regulations]
[Pages 8239-8243]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-4125]


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OVERSEAS PRIVATE INVESTMENT CORPORATION

22 CFR Parts 706, 713

RIN 3420-AA02


Production of Nonpublic Records and Testimony of OPIC Employees 
in Legal Proceedings

AGENCY: Overseas Private Investment Corporation.

ACTION: Final rule.

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SUMMARY: This final rule establishes rules regarding subpoenas seeking 
nonpublic records or the testimony of current or former OPIC employees 
in legal proceedings. The final rule facilitates access to records in 
OPIC's custody by centralizing agency decision-making with respect to 
demands for records or testimony in such legal proceedings. The final 
rule provides procedures, requirements and information on how OPIC will 
handle these matters, and expressly prohibits any disclosure or 
testimony except as provided by the rule. The effect of this final rule 
will be, among other benefits, to ensure an efficient use of OPIC 
resources, promote uniformity in decisions, protect confidential 
information, maintain agency control over the release of official 
information, protect the interests of the United States, and provide 
guidance to parties. The final rule also amends the current rule 
regarding release of OPIC records which are exempt from disclosure 
under the Freedom of Information Act (FOIA), to conform with the 
procedures provided in this final rule.

DATES: Effective March 22, 1999.

FOR FURTHER INFORMATION CONTACT: Mitchel Neurock, Counsel for

[[Page 8240]]

Administrative Affairs, at (202) 336-8400.

SUPPLEMENTARY INFORMATION: This final rule implements, with minor 
technical changes, the proposed rule published on December 10, 1998. 63 
FR 68213. More than 60 government agencies and departments have 
promulgated regulations governing the circumstances and manner in which 
an employee may respond to demands for testimony or production of 
documents. These regulations, issued under the authority of 5 U.S.C. 
301, the so-called ``housekeeping statute,'' are separate from FOIA 
regulations. In addition, OPIC has statutory authority to ``take such 
actions as may be necessary or appropriate to carry out the powers'' 
granted it by Congress. 22 U.S.C. 2199(d).
    The housekeeping statute expressly states that it does not provide 
a basis for withholding information or limiting the availability of 
records, but authorizes a head of an executive agency to issue 
``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.'' 5 
U.S.C. 301. These regulations are known as ``Touhy regulations,'' 
thanks to a landmark Supreme Court decision, United States ex rel. 
Touhy v. Ragen, 340 U.S. 462 (1951).
    OPIC receives subpoenas and requests for OPIC employees to provide 
evidence in legal proceedings. Typically, subpoenas are for OPIC 
records which are not available to the public under the Freedom of 
Information Act (FOIA), 5 U.S.C. 552. Also, OPIC receives subpoenas and 
requests for OPIC employees to appear as witnesses in legal proceedings 
in conjunction with requests for nonpublic records or to provide 
testimony.
    In recent years, the number of requests has averaged 3 to 4 per 
year. Often, these subpoenas and requests relate to litigation 
involving projects financed and/or insured in whole or in part by OPIC, 
where one or more parties want to use nonpublic records, such as OPIC 
financing documents, in the case. In addition, parties to litigation 
frequently wish to have an OPIC employee, often a finance or insurance 
officer, testify to establish the authenticity of the records or to 
explain the information contained in those records. If OPIC provides 
these records and an OPIC employee appears as a witness, this will 
cause a significant disruption in the employee's work schedule. 
Moreover, instead of producing a witness to testify as to the 
authenticity of documents, OPIC could provide documents under its 
corporate seal, the authenticity of which must be judicially noted. See 
22 U.S.C. 2199(d).
    Additionally, in many cases parties wish to use an OPIC employee as 
an expert witness on matters such as the fundamentals of project 
finance or other issues involving opinion evidence. OPIC's experience 
has been that, in practically all cases, the parties can address these 
issues by eliciting the testimony of other witnesses, including the 
testimony of their own independent expert witnesses. They may also use 
their own records.
    OPIC's prior regulations failed to inform parties about any matter 
concerning submission of subpoenas. There was no guidance for parties 
seeking to submit subpoenas addressing when parties should submit a 
request for nonpublic documents or testimony, the time period for 
OPIC's review of such a request, potential fees, or, if a request is 
granted, any restrictions which OPIC might place upon the disclosure of 
records or the appearance of an OPIC employee as a witness. There was 
also no guidance for parties about the factors OPIC will consider in 
making its determination in response to such requests.
    This final rule fills in these gaps in OPIC's regulations. The 
final rule, in brief: prohibits disclosure of nonpublic records or 
testimony by OPIC employees, as defined, absent compliance with the 
rule; lets the public know what information to submit and what factors 
OPIC will consider; and sets out filing fees, deadlines and potential 
restrictions on disclosure of nonpublic documents and testimony of OPIC 
employees. The charges for witnesses are the same as those provided by 
the federal courts, and the fees relating to the production of records 
are the same as those charged under FOIA.
    A few simple definitions clarify that this final rule applies to a 
broad range of cases (not just matters before courts). The final rule 
applies to former as well as to current OPIC employees. Former OPIC 
employees remain prohibited from testifying about specific matters for 
which they had responsibility during their OPIC employment, unless 
permitted to testify as provided in this final rule. They are not, 
however, barred from appearing on general matters or otherwise 
employing their expertise (as expert witnesses, for example).
    This final rule solves some problems which have arisen in the past. 
It should eliminate or reduce eleventh hour requests for nonpublic 
documents or testimony of OPIC employees. The procedures and criteria 
will ensure a more efficient use of OPIC resources, will minimize the 
possibility of involving OPIC in issues unrelated to its 
responsibilities, will promote uniformity in responding to such 
requests and subpoenas, and will maintain the necessary impartiality of 
OPIC in matters between private litigants. The final rule will serve 
OPIC's interest in protecting sensitive, confidential and privileged 
information and records generated by its work.
    This final rule is procedural, not substantive. It does not confer 
a benefit upon anyone. It does not create a right to obtain OPIC 
records or the testimony of any OPIC employee, past or present, nor 
does it create any additional right or privilege not already available 
to OPIC to deny such a request. OPIC makes no waiver of its sovereign 
immunity by implementing this rule. Failure to comply with the rule, 
however, constitutes grounds for OPIC's denial of any request. 
Requesters may be able to seek judicial review of any final 
determination by OPIC under the Administrative Procedure Act, 5 U.S.C. 
702.
    This final rule is not intended to restrict access to records under 
FOIA, the Privacy Act (5 U.S.C. 552a), or any other authority. At the 
same time, nothing in this final rule would permit disclosure of 
information by OPIC or its employees except as provided by statute or 
other applicable law.
    During the comment period provided by the notice of proposed 
rulemaking, OPIC received no formal comments.

Regulatory Procedures

Regulatory Flexibility Act

    The Regulatory Flexibility Act requires OPIC to prepare an analysis 
to describe any significant economic impact any proposed regulation may 
have on any small business or other small entity. 5 U.S.C. 602, 603. 
OPIC has determined and certifies that this final rule, if adopted, 
will not have a significant economic impact on any entity. The reasons 
for this determination are that the copying and witness fees to be 
charged to persons and entities submitting requests under the 
regulation are not large, and will not create a financial burden. The 
final rule will not create any significant demand for legal, accounting 
or consulting expenditures. Accordingly, OPIC has determined that a 
Regulatory Flexibility Analysis is not required.

[[Page 8241]]

Paperwork Reduction Act

    OPIC has determined that this rulemaking is not subject to the 
Paperwork Reduction Act, because OPIC averages fewer than 10 requests 
per year, and expects this level of activity to remain below this 
threshold. 5 CFR 1320.3(c).

Executive Order 12612

    OPIC has determined that this final rule will not have a 
substantial direct effect on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among various levels of government.

List of Subjects

22 CFR Part 706

    Freedom of information.

22 CFR Part 713

    Administrative practice and procedure, Confidential business 
information, Freedom of Information Act, Government employees, 
Reporting and recordkeeping requirements, Subpoenas.
    For the reasons set forth in the preamble, 22 CFR Chapter VII is 
amended as follows:

PART 706--[AMENDED]

    1. The authority citation for Part 706 is revised to read as 
follows:

    Authority: The Freedom of Information Act, as amended, 5 U.S.C. 
552; 5 U.S.C. 301; 22 U.S.C. 2199(d).

    2. In Sec. 706.22, designate the introductory text as paragraph (a) 
and redesignate the previous paragraphs (a) through (f) as paragraphs 
(a)(1) through (a)(6). Add paragraph (b) to read as follows:


Sec. 706.22  Information and records not generally available to the 
public.

* * * * *
    (b) Prohibition against disclosure. Except as provided in Part 713 
of this Chapter or by other law or regulation, no officer, employee or 
agent of OPIC shall disclose or permit the disclosure of any exempt 
records of OPIC or of any information described in paragraph (a) of 
this section to any person other than those OPIC officers, employees or 
agents properly entitled to such information for the performance of 
their official duties.
    3. Part 713 is added to read as follows:

PART 713--PRODUCTION OF NONPUBLIC RECORDS AND TESTIMONY OF OPIC 
EMPLOYEES IN LEGAL PROCEEDINGS

Sec.
713.1  What does this part prohibit?
713.2  When does this part apply?
713.3  How do I request nonpublic records or testimony?
713.4  What must my written request contain?
713.5  When should I make my request?
713.6  Where should I send my request?
713.7  What will OPIC do with my request?
713.8  If my request is granted, what fees apply?
713.9  If my request is granted, what restrictions may apply?
713.10  Definitions.

    Authority: 5 U.S.C. 301; 5 U.S.C. 552; 5 U.S.C. 552a; 5 U.S.C. 
702; 18 U.S.C. 207; 18 U.S.C. 641; 22 U.S.C. 2199(d); 28 U.S.C. 
1821.


Sec. 713.1  What does this part prohibit?

    This part prohibits the release of nonpublic records for legal 
proceedings or the appearance of an OPIC employee to testify in legal 
proceedings except as provided in this part. Any person possessing 
nonpublic records may release them or permit their disclosure or 
release only as provided in this part.
    (a) Duty of OPIC employees.
    (1) If you are an OPIC employee and you are served with a subpoena 
requiring you to appear as a witness or to produce records, you must 
promptly notify the Vice-president/General Counsel in the Department of 
Legal Affairs. The Vice-President/General Counsel has the authority to 
instruct OPIC employees to refuse to appear as a witness or to withhold 
nonpublic records. The Vice-President/General Counsel may let an OPIC 
employee provide testimony, including expert or opinion testimony, if 
the Vice-President/General Counsel determines that the need for the 
testimony clearly outweighs contrary considerations.
    (2) If a court or other appropriate authority orders or demands 
from you expert or opinion testimony or testimony beyond authorized 
subjects contrary to the Vice-President/General Counsel's instructions, 
you must immediately notify the Vice-President/General Counsel of the 
order and then respectfully decline to comply with the order. You must 
decline to answer questions on the grounds that this part forbids such 
disclosure. You should produce a copy of this part, request an 
opportunity to consult with the Vice-President/General Counsel, and 
explain that providing such testimony without approval may expose you 
to disciplinary or other adverse action.
    (b) Duty of persons who are not OPIC employees.
    (1) If you are not an OPIC employee but have custody of nonpublic 
records, as defined at Sec. 713.10, and you are served with a subpoena 
requiring you to produce records or to testify as a witness, you must 
promptly notify OPIC of the subpoena. Also, you must notify the issuing 
court or authority and the person or entity for whom the subpoena was 
issued of the contents of this part. Provide notice to OPIC by sending 
a copy of the subpoena to the Vice-President/General Counsel, OPIC, 
1100 New York Avenue, NW, Washington, DC 20527. After reviewing notice, 
OPIC may advise the issuing court or authority and the person or entity 
for whom the subpoena was issued that this part applies and, in 
addition, may intervene, attempt to have the subpoena quashed or 
withdrawn, or register appropriate objections.
    (2) After you notify the Vice-President/General Counsel of the 
subpoena, respond to the subpoena by appearing at the time and place 
stated in the subpoena, unless otherwise directed by the Vice 
President/General Counsel. Unless otherwise authorized by the Vice-
President/General Counsel, decline to produce any records or give any 
testimony, basing your refusal on this part. If the issuing court or 
authority orders the disclosure of records or orders you to testify, 
decline to produce records or testify and advise the Vice-President/
General Counsel.
    (c) Penalties. Anyone who discloses nonpublic records or gives 
testimony related to those records, except as expressly authorized by 
OPIC or as ordered by a federal court after OPIC has had the 
opportunity to be heard, may face the penalties provided in 18 U.S.C. 
641 and other applicable laws. Also, former OPIC employees, in addition 
to the prohibition contained in this part, are subject to the 
restrictions and penalties of 18 U.S.C. 207.


Sec. 713.2  When does this part apply?

    This part applies if you want to obtain nonpublic records or 
testimony of an OPIC employee for a legal proceeding. It does not apply 
to records that OPIC is required to release, or of which OPIC makes 
discretionary release, under the Freedom of Information Act (FOIA), 
records that OPIC releases to federal or state investigatory agencies, 
records that OPIC is required to release pursuant to the Privacy Act, 5 
U.S.C. 552a, or records that OPIC releases under any other applicable 
authority.

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Sec. 713.3  How do I request nonpublic records or testimony?

    To request nonpublic records or the testimony of an OPIC employee, 
you must submit a written request to the Vice-President/General Counsel 
of OPIC. If you serve a subpoena on OPIC or an OPIC employee before 
submitting a written request and receiving a final determination, OPIC 
will oppose the subpoena on the grounds that you failed to follow the 
requirements of this part. You may serve a subpoena as long as it is 
accompanied by a written request that complies with this part.


Sec. 713.4  What must my written request contain?

    Your written request for records or testimony must include:
    (a) The caption of the legal proceeding, docket number, and name of 
the court or other authority involved.
    (b) 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.
    (c) 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.
    (d) A statement as to how the need for the information outweighs 
the need to maintain the confidentiality of the information and 
outweighs the burden on OPIC to produce the records or provide 
testimony.
    (e) A statement indicating that the information sought is not 
available from another source, such as the requestor's own books and 
records, other persons or entities, or the testimony of someone other 
than an OPIC employee, such as retained experts.
    (f) A description of all prior decisions, orders, or pending 
motions in the case that bear upon the relevance of the records or 
testimony you want.
    (g) The name, address, and telephone number of counsel to each 
party in the case.
    (h) An estimate of the amount of time you anticipate that you and 
other parties will need with each OPIC employee for interviews, 
depositions, and/or testimony.


Sec. 713.5  When should I make my request?

    Submit your request at least 45 days before the date you need the 
records or testimony. If you want your request processed in a shorter 
time, you must explain why you could not submit the request earlier and 
why you need such expedited processing. If you are requesting the 
testimony of an OPIC employee, OPIC expects you to anticipate your need 
for the testimony in sufficient time to obtain it by deposition. The 
Vice-President/General Counsel may well deny a request for testimony at 
a legal proceeding unless you explain why you could not have used 
deposition testimony instead. The Vice-President/General Counsel will 
determine the location of a deposition, taking into consideration 
OPIC's interest in minimizing the disruption for an OPIC employee's 
work schedule and the costs and convenience of other persons attending 
the deposition.


Sec. 713.6  Where should I send my request?

    Send your request or subpoena for records or testimony to the 
attention of the Vice-President/General Counsel, OPIC, 1100 New York 
Avenue NW, Washington, DC 20527.


Sec. 713.7  What will OPIC do with my request?

    (a) Factors OPIC will consider. OPIC may consider various factors 
in reviewing a request for nonpublic records or testimony of OPIC 
employees, including:
    (1) Whether disclosure would assist or hinder OPIC in performing 
its statutory duties or use OPIC resources unreasonably, including 
whether responding to the request will interfere with OPIC employees' 
ability to do their work.
    (2) Whether disclosure is necessary to prevent the perpetration of 
a fraud or other injustice in the matter.
    (3) Whether you can get the records or testimony you want from 
sources other than OPIC.
    (4) Whether the request is unduly burdensome.
    (5) Whether disclosure would violate a statute, executive order, or 
regulation, such as the Privacy Act, 5 U.S.C. 552a.
    (6) Whether disclosure would reveal confidential, sensitive or 
privileged information, trade secrets or similar, confidential 
commercial or financial information, or would otherwise be 
inappropriate for release and, if so, whether a confidentiality 
agreement or protective order as provided in Sec. 713.9(a) can 
adequately limit the disclosure.
    (7) Whether the disclosure would interfere with law enforcement 
proceedings, compromise constitutional rights, or hamper OPIC programs 
or other OPIC operations.
    (8) Whether the disclosure could result in OPIC's appearing to 
favor one litigant over another.
    (9) Any other factors OPIC determines to be relevant to the 
interests of OPIC.
    (b) Review of your request. OPIC will process your request in the 
order it is received. OPIC will try to respond to your request within 
45 days, but this may vary, depending on the scope of your request.
    (c) Final determination. the Vice-President/General Counsel makes 
the final determination on requests for nonpublic records or OPIC 
employee testimony. All final determinations are in the sole discretion 
of the Vice-President/General Counsel. The Vice-President/General 
Counsel will notify you and the court or other authority of the final 
determination of your request. In considering your request, the Vice-
President/General Counsel may contact you to inform you of the 
requirements of this part, ask that the request or subpoena be modified 
or withdrawn, or may try to resolve the request or subpoena informally 
without issuing a final determination.


Sec. 713.8  If my request is granted, what fees apply?

    (a) Generally. You must pay any fees associated with complying with 
your request, including copying fees for records and witness fees for 
testimony. The Vice-President/General Counsel may condition the 
production of records or appearance for testimony upon advance payment 
of a reasonable estimate of the fees.
    (b) Fees for records. You must pay all fees for searching, 
reviewing and duplicating records produced in response to your request. 
The fees will be the same as those charged by OPIC under its Freedom of 
Information Act regulations, 22 CFR Part 706, Subpart B, Sec. 706.26.
    (c) Witness fees. Your must pay the fees, expenses, and allowances 
prescribed by the court's rules for attendance by a witness. If no such 
fees are prescribed, the local federal district court rule concerning 
witness fees, for the federal district court closest to where the 
witness appears, will apply. For testimony by current OPIC employees, 
you must pay witness fees, allowances, and expenses to the Vice-
President/General Counsel by check made payable to the ``Overseas 
Private Investment Corporation'' within 30 days from receipt of OPIC's 
billing statement. For the testimony of a former OPIC employee, you 
must pay witness fees, allowances, and expenses directly to the former 
employee, in accordance with 28 U.S.C. 1821 or other applicable 
statutes.
    (d) Certification of records. OPIC may authenticate or certify 
records to facilitate their use as evidence. If you require 
authenticated records, you must request certified copies at least 45 
days before the date they will be needed. Send your request to the 
Vice-President/

[[Page 8243]]

General Counsel. OPIC will charge you a certification fee of $5.00 per 
document.
    (e) Waiver of fees. A waiver or reduction of any fees in connection 
with the testimony, production, or certification or authentication of 
records may be granted in the discretion of the Vice-President/General 
Counsel. Waivers will not be granted routinely. If you request a 
waiver, your request for records or testimony must state the reasons 
why a waiver should be granted.


Sec. 713.9  If my request is granted, what restrictions may apply?

    (a) Records. The Vice-President/General Counsel may impose 
conditions or restrictions on the release of nonpublic records, 
including a requirement that you obtain a protective order or execute a 
confidentiality agreement with the other parties in the legal 
proceeding that limits access to and any further disclosure of the 
nonpublic records. The terms of a confidentiality agreement or 
protective order must be acceptable to the Vice-President/General 
Counsel. In cases where protective orders or confidentiality agreements 
have already been executed, OPIC may condition the release of nonpublic 
records on an amendment to the existing protective order or 
confidentiality agreement.
    (b) Testimony. The Vice-President/General Counsel may impose 
conditions or restrictions on the testimony of OPIC employees, 
including, for example, limiting the areas of testimony or requiring 
you and the 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 you 
requested the testimony. The Vice-President/General Counsel may also 
require you to provide a copy of the transcript of the testimony to 
OPIC at your expense.


Sec. 713.10  Defintitions.

    For purposes of this part:
    Legal proceedings means any matter before any federal, state or 
foreign administrative or judicial authority, including courts, 
agencies, commissions, boards, grand juries, or other tribunals, 
involving such proceedings as lawsuits, licensing matters, hearings, 
trials, discovery, investigations, mediation or arbitration. When OPIC 
is a party to a legal proceeding, it will be subject to the applicable 
rules of civil procedure governing production of documents and 
witnesses; however testimony and/or production of documents by OPIC 
employees, as defined, will still be subject to this part.
    Nonpublic records means any OPIC records which are exempt from 
disclosure by statute or under Part 706, OPIC's regulations 
implementing the provisions of the Freedom of Information Act. For 
example, this may include records created in connection with OPIC's 
receipt, evaluation and action on actual and proposed OPIC finance 
projects and insurance policies (whether such projects or policies were 
cancelled or not), including all reports, internal memoranda, opinions, 
interpretations, and correspondence, whether prepared by OPIC employees 
or by persons under contract, as well as confidential business 
information submitted by parties seeking to do business with OPIC. 
Whether OPIC has actually chosen in practice to apply any exemption to 
specific documents is irrelevant to the question of whether they are 
``nonpublic'' for the purposes of this Part.
    OPIC employee means current and former officials, members of the 
Board of Directors, officers, directors, employees and agents of the 
Overseas Private Investment Corporation, including contract employees, 
consultants and their employees. This definition does not include 
persons who are no longer employed by OPIC and are retained or hired as 
expert witnesses or 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.
    Subpoena means any order, subpoena for records or other tangible 
things or for testimony, summons, notice or legal process issued in a 
legal proceeding.
    Testimony means any written or oral statements made by an 
individual in connection with a legal proceeding, including personal 
appearances in court or at depositions, interviews in person or by 
telephone, responses to written interrogatories or other written 
statements such as reports, declarations, affidavits, or certifications 
or any response involving more than the delivery of records.

    Dated: February 9, 1999.
Michael C. Cushing,
Managing Director for Administration.
[FR Doc. 99-4125 Filed 2-18-99; 8:45 am]
BILLING CODE 3210-01-M